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R-2012-129-2012-08-27 RESOLUTION NO. R2012-129 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO AN AMENDMENT OF A DEVELOPMENT AGREEMENT WITH SHS PARTNERS, LTD. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Amendment to Development Agreement by and between the City of Pearland and SHS Partners, 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 said Amendment to Development Agreement with SHS Partners, Ltd. PASSED, APPROVED and ADOPTED this the 27th day of August, A.D., 2012. 3'42' TOM REID MAYOR ATTEST: c>•d Xc Y G L Y SE TARP ,0 •14 1/4:4''u Y`'' APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY Exhibit"A" Resolution No. R2012-129 AMENDMENT TO DEVELOPMENT AGREEMENT This Amendment (hereinafter "Amendment") is made between the CITY OF PEARLAND (hereinafter "City"), SHS Partners, Ltd., a Texas limited partnership (hereinafter "SHS") and Stoneriver Capital, LLC, a Texas limited liability company (hereinafter, the "Developer") to amend that certain Development Agreement dated March 27, 2006 (the "Contract")between the City and SHS. 1. Amended Terms. The City, SHS and the Developer hereby agree that the Contract is amended as follows: A. Stoneriver Capital,LLC. The land adjacent to the Hughes Road Extension has been acquired by the Developer, and the Developer hereby assumes the obligations of SHS with respect to the construction of the Hughes Road Extension and related improvements. Accordingly, the Developer, not SHS, shall be responsible to fulfill all of SHS's obligations to construct the Hughes Road Extension under the Contract as amended hereby. B. Section 4.4 b). The Developer agrees to design and construct the Hughes Road Extension B, which will be constructed as a two-lane half-boulevard road, with appropriate landscaping, storm sewer, irrigation and lighting. The landscaping and irrigation components referenced herein do not have to be constructed simultaneous to the road construction, but instead may be constructed within 120 days of the City's approval of the final plat for the first phase of development of Developer's Property located in the City (excluding any plat of Hughes Road). Acknowledging the critical relationship between the construction of Hughes Road Extension A (previously constructed by City) and Hughes Road Extension B, Developer agrees to complete construction of Hughes Road Extension B on or before February 1, 2013 ("Construction Date"). C. Section 4.4 d). The City agrees to design Hughes Road Extension C and Developer agrees to construct Hughes Road Extension C, which will be constructed as a two- lane half-boulevard road, with appropriate landscaping, storm sewer, irrigation and lighting. Developer agrees to construct Hughes Road Extensions B and C (collectively the "Improvements") at the same time and complete construction of the Improvements•on or before the Construction Date. City agrees to pay its portion of the estimated construction costs for the Improvements as more accurately described in Exhibit"A" attached hereto. a. Developer has hired engineers to design Hughes Road Extension B and City shall hire engineers to design Hughes Road Extension C. Developer agrees to construct and manage the construction of the Improvements. Developer agrees that the City will not be charged a fee for management services provided by Developer. Within 30 days following the execution of this Amendment, 1 1702982.2/008005.000029 Developer shall convey or dedicate to the City all of the right-of-way necessary for the completion of Hughes Road Extension B. b. Upon the approval of the plans by the City, Developer's engineers will obtain competitive line item bids in accordance with Local Government Code Chapter 252 for the construction of the Improvements in accordance with the plans within 60 days after the City's approval and signature on said plans. Developer and the City will review the bids and Developer, subject to the acquisition of any required right-of-way by City, shall award a contract to the successful bidder within ninety (90) days following approval of the plans of the Improvements by the City, City reserves the right to reject any and all bids for the construction of the Improvements within ten (10) days following submission to the City for review, following the expiration of which the bids selected by Developer shall be deemed approved by the City. c. Following award of the bid by Developer, Developer shall enter into a contract to construct said Improvements and issue a Notice to Proceed to the contractor within 15 days after award of the bid. The contract shall require the contractor to complete the Improvements within 120 calendar days. Developer's engineer shall monitor the progress and workmanship of the contractor and cause the contract to be administered so that the Improvements are completed as contemplated by this Agreement. 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. d. Developer shall monthly, on a date agreed upon by the City and Developer, submit, to the City, invoices submitted to the Developer by the engineers and contractors selected to design and construct the Improvements. Developer shall, prior to submitting any invoice covered by this Agreement, review and approve the invoice for payment and City shall make payment for its portion directly to the engineer and/or contractor in accordance with Exhibit "B" in a timely manner. 2. Contract to Remain in Force. Other than the provisions of the Contract expressly amended herein, the Contract shall remain in full force and its enforceability shall be unaffected by this Amendment. 2 1702982.2/008005.000029 EXECUTED and EFFECTIVE as of the 27th day of August , 2012. CITY: SHS: SHS Partners,Ltd., a Texas limited partnership , efi► By: it-, By: SHS Land Company, LLC, Bi 1 Eisen its general partner City Manager By: Holcomb Land Service Corp., its manager By: es R. Holcomb, Presi nt By: ' : _, 1 c., its mana_er lir , ., By: `11111111 ` it John . tasier., ' dent �— DEVELOPER: Stoneriver Capital,LLC, a Texas limited liability company By: HLDL Management, LLC, its manager By: /IAMIAlh&Al J , R. Holcomb, Manager 6 By: RPD c., its manager 6_____By: ��/ John S. tasiero, ' -side t .__ 3 1702982.2/008005.000029 Exhibit "A" to Amendment to Development Agreement ENGINEER'S PROBABLE ESTIMATE FOR: Hughes Road Phase II 4-Jun-12 LJA Enginering, Inc FRN-F-1386 Stoneriver COPL Portion Portion TOTAL Lindsey Construction - Offsite Ditch and Detention $43,182.15 $182,076.85 $225,259.00 Lindsey Construction -Drainage Facilities and SWPP Items $59,049.96 $191,770.04 $250,820.00 Jaho, Inc.- Paving and Appurtenances $111,290.60 $414,824.55 $526,115.15 Subtotal $213,522.71 $788,671.44 $1,002,194.15 Engineering $35,063.00 $159,852.00 $194,915.00 Materials Testing (2%) $4,270.45 $15,773.43 $20,043.88 Total $252,856.17 $964,296.87 $1,217,153.03 GARY W.MENSIK g #rp N. 84738 ............... 1i'�S cENSE� ej• 6/�l� v ENGINEER'S PROBABLE ESTIMATE FOR: CONSTRUCTION OF OFFSITE DITCH AND DETENTION TO SERVE HUGHES ROAD Phase H 21-May-12 LIA Enginering,Inc City of Pearland,Harris County Texas JOB NO.1994-5016 t`J",t,;$I�i";rtri t fftw)4f1:' ?i rMMg'..tw? tt-ttS`:nfiiS *' r.. .; QTY UNIT COST TOTAL COST OFFSITE DITCH AND DETENTION I. AREA NO.1-DRAINAGE CHANNEL PREPARATION, LF $2,600.00 $4.00 S10,400.00 INCLUDES MOWING AND STRIPPING,COMPLETE IN PLACE 2. AREA NO.2-CLEARING&GRUBBING,MOWING AND AC $8.37 $4,200.00 $35,154.00 STRIPPING,INCLUDES GRIND,HAUL,AND STOCKPILE SUITABLE CHIPPINGS TO LOCATIONS ON SITE OR DISPOSSAI OF MATERIAL OFF SITE,COMPLETE IN PLACE 3. AREA NO.3-HUGHES ROAD ROW PREPARATION, AC $8.05 $4,200.00 S33,810.00 INCLUDES CLEARING&GRUBBING,MOWING AND STRIPPING,INCLUDES GRIND,HAUL AND STOCKPILE SUITABLE CHIPPINGS TO LOCATIONS ON SITE OR DISPOSAL OF MATERIAL OFF SITE,COMPLETE IN PLACE 4. AREA NO.4-ALTERNATE FILL AREA-CLEARING& AC $8.08 $4,200.00 S33,936.00 GRUBBING,MOWING AND STRIPPING,INCLUDES GRIND, 5. DETENTION EXCAVATION,HAUL TO HUGHES ROAD CY $9,600.00 $4.00 S38,400.00 ROW(AREA NO.3),PLACEMENT AND COMPACTION, COMPLETE IN PLACE 6. DETENTION AND DEMUCKING EXCAVATION.HAUL TO CY $2,950.00 $4.00 S1 1,800.00 ALTERNATE FILL AREA(AREA NO.4),PLACEMENT AND COMPACTION,COMPLETE IN PLACE 7. MITIGATION AND DEMUCKING EXCAVATION,HAUL TO CY $5,936.00 $4.00 S23,744.00 ALTERNATE FILL AREA(AREA NO.4),PLACEMENT AND COMPACTION,COMPLETE IN PLACE 8. HYDROMULCH SEEDING,COMPLETE IN PLACE AC $9.00 $2,200.00 S19,800.00 9. BROADCAST SEEDING,COMPLETE IN PLACE AC $9.00 $800.00 $7,200.00 10. 18'CONCRETE RIP-RAP,COMPLETE IN PLACE SY $167.00 $45.00 $7,515.00 I I. REMOVE AND REPLACE(LOWER)2"-12'PVC LS $1.00 $3,500.00 $3,500.00 RESTRICTOR PIPES(TO BE USED ONLY AS DIRECTED BY THE ENGINEER),COMPLETE IN PLACE SUBTOTAL DRAINAGE FACILITIES $225,259.00 TOTAL OFFSITE DITCH AND DETENTION $225,259.00 SHS Portion (2,159.40 feet) 8093% $182,076.85 COPL Portion (512 feet) 19.17% $43,182.15 C:\gary data 091 I08WA work files\riverstone\Hughcs Road Overall Bid Cost_060112.xls Z ENGINEER'S PROBABLE ESTIMATE FOR: CONSTRUCTION OF DRAINAGE FACILITIES AND SWPPP ITEMS TO SERVE HUGHES ROAD EXTENSION 21-May-I2 City of Pearlaad,Harris County Texas JOB NO.1994-5016 $2,159.39 Segment B Segment c shared ITEM DESCRIPTION UNIT QTY UNIT COST TOTAL COST quantity Coat quantity Coat DRAINAGE EACII.TITRS AND SWPPP ITEMS Total At COPS. COPL% COPL Can SHS Ac SHS% SHS Cost I. 38-RCP STORM SEWER ASTM C-76.CLASS III.ALL CUTS.TO LF 103 $70.00 $7,210.00 103 $7,210.00 $0.00 103 57,210.00 11.73 INCLUDE BEDDING AND BACKFILL,COMPLETE IN PLACE 2.17 18.50% S1.333.82 9.6 81.50% $5,876.18 2. 3D'RCP STORM SEWER AETM C-78,CLASS III,ALL CUTS,TO LF 860 $66.00 S36,245.00 659 $36,245.00 $0.00 76 $4,180.00 6.33 INCLUDE BEDDING AND BACKFILL,COMPLETE IN PLACE 2.17 34.28% $1,132.95 4.2 65.72% $2,747.05 3. 24'RCP STORM SEWER ASTM C-78,CLASS III.ALL CUTS,TO I.E 2031 $40.00 S81,240.00 1611 $64,440.00 420 $16,800.00 660 $26,400.00 3.59 INCLUDE REDOING AND BACKFILL,COMPLETE IN PLACE 2.17 60.45% $15,957.66 IA 39.55% $10442.94 4. STAGE I I.TYPE'C'INLET.ALL DEPTHS.INCLUDES INLET FA $ $060.00 $4,7511.00 4 $3,800.00 1 $%0.00 PROTECTION BARRIERS FOR STAGE I INLET.COMPLETE IN PLACE 5. STAGE II-TYPE-C-INLET.ALL DEPTHS.COMPLETE IN PLACE EA 5 $2,200.00 S 11,000.00 4 $8,800.W I $2,2110.00 6. TYPE-C'MANHOLE WITH TYPE"E'INLET TOP.(OPENING ALL EA 1 S3,000.00 53,000.00 I $3,000.00 $0.00 I $3,000.01 11.73 SIDES),ALL DEPTHS,COMPLETE IN PLACE 7, TYPE'E'INLET,(OPENING ALL SIDES),ALL DEPTHS. EA 0 $2,200.00 f 19,80D.00 8 $17,600.00 I $2,200.002.17 18.50% $554.99 9.6 81.50% $2,445.01 COMPLETE IN PLACE 8. TYPE-C-MANHOLE FOR 42-STORM SEWER AND SMALLER, EA 8 $3,100.00 S24,800.00 6 518,600.00 2 $6,200.00 ALL DEPTHS.COMPLETE IN PLACE 9, 5-REINFORCED CONCRETE SLOPE PAVING,INCLUDES 2'TOE SY 45 $90.00 $4,050.00 45 $4,050.00 $0.00 45 $4,1150.00 11.73 WALLS ALL AROUND.COMPLETE IN PUCE 10. 6'BRICK WALL PLUG FOR STORM SEWERS.(ALL SIZES), FA 3 S00.00 5270.00 2 $180.00 1 f90.110 2.17 18.50% $749.23 9.6 81.50% $3,300.77 COMPLETE IN PLACE I1. EXCAVATION AND GRADING OF ROADSIDE DITCHES, LF 4081 $3.00 S14,883.00 4324 S12,972.00 637 $1,911.00 INCLUDES COMPACTION OF EXCAVATED MATERIAL AND RE- APPLICATION OF STOCKPILED STRIPPINGS.COMPLETE IN PLACE 12. TRENCH SAFETY.(ALL DEPTHS).COMPLETE IN PLACE LF 2793 $1.00 $2,793.W 2373 $2,373.00 420 S420.00 II. DEWATERINO FOR STORM SEWER(TO BE USED ONLY AS LF 200 $20.00 $4,5 0.IE1 IN) S3,000.00 50 51,000.00 DIRECTED BY THE ENGINEER).COMPLETE IN PLACE 14. WET SAND CONSTRUCTION FOR STORM SEWERS,(TO BE LF 200 $5.00 $1,001.110 150 $730.00 50 5230.00 USED ONLY AS DIRECTED BY THE ENGINEER),COMPLETE IN 15. REINFORCED ALTER FABRIC FENCE.COMPLETE IN PLACE LF 2871 S2.00 S5,342.00 2159 S4,318.00 512 $1,024.00 16. HYDROMULCH SEEDING OF ROW,COMPLETE IN PLACE AC 8.14 $2,200.00 $13,50.00 4.% S10,912.00 1.18 $2,596.00 17. STABILIZED CONSTRUCTION EXIT,COMPLETE IN PUCE EA 2 52,500.00 55,000.00 2.00 55,000.00 2 55,000.00 11.73 2.17 18.50% $924.98 9.6 81.50% $4,075.02 IS. STAGE H INLET PROTECTION BARRIERS(SAND BAGS). EA 7 $50.00 S350.00 6 S301.01 1 $50.00 COMPLETE IN PLACE 19. INLET PROTECTION BARRIERS FOR TYPE E INLETS. EA 0 $75.00 S675.01 S $600.00 I $75.00 COMPLETE IN PLACE 20. SODDING.(TO BE USED ONLY AS DIRECTED BY THE SF 7124 $1.00 $7,124.00 5759 $5,758.67 1365 $1,365.33 ENGINEER),COMPLETE IN PLACE 21. STORM WATER POLLUTION PREVENTION PLAN COMPLIANCE. LS 1 51.000.00 SI,000.00 1.000 51,000.00 0.1100 $0.00 I $1,000.00 11.73 COMPLETE IN PLACE 2.17 18.50% 3l55.00 9.6 51.50% S515.00 22. REMOVE AND DISPOSE OF A PORTION OF CHAIN LINK FENCE, LF 66 512.00 $780.01 0 S0.00 65 $780.01 COMPLETE IN PLACE 23. REMOVE AND DISPOSE OF EXISTING BARB WIRE FENCE, LF 800 $2.00 $2,000.00 800 112,000.00 0 $0.01 COMPLETE IN PLACE City of Pearlend Prorate Share,complete In place ($21,138.63) shared $21,138.63 TOTAL Cost S250,320.00 S191,770.04 S59,049.96 S50,840.00 S21,138.63 529,70137 C:\gory dole 091II8811A work Bka4ivmroueWu$hor Rod Owxoll Bid Cost 060112,4, S 6 4 1 ENGINEER'S PROBABLE ESTIMATE FOR: CONSTRUCTION OF PAVING AND APPURTENANCES TO SERVE HUGHES ROAD EXTENSION CITY OF PEARLAND HARRIS COUNTY,TEXAS JOB NO.1994-5016 31-May-12 Jahn,Inc. Segment B Segment C ITEM DESCRIPTION UNIT QTY UNIT COST TOTAL COST quantity Cost quantity Cost PAVING AND APPURTENANCES 1. 10"REINFORCED CONCRETE PAVEMENT,COMPLETE IN SY 7420 $44.25 $328,335.00 5998 $265,411.50 1422 $62,923.50 PLACE 2. 7'REINFORCED CONCRETE PAVEMENT,COMPLETE IN SY 365 $37.10 $13,541.50 145 $5,379.50 220 $8,162.00 PLACE 3. 6"REINFORCED CONCRETE CURB,COMPLETE IN PLACE LF 5343 $2.25 $12,021.75 4319 $9,717.75 1024 $2,304.00 4. 8"LIME STABILIZED SUB-GRADE(MANIPULATION), SY 8379 $1.25 $10,473.75 6623 $8,278.75 1756 $2,195.00 COMPLETE IN PLACE 5. HYDRATED LIME FOR 8"STABILIZED SUB-GRADE,(44 TON 185 $163.00 $30,155.00 146 $23,798.00 39 $6,357.00 LBS/SY),COMPLETE IN PLACE 6. ROADWAY EXCAVATION,COMPLETE IN PLACE CY 1180 $5.80 $6,844.00 660 $3,828.00 520 $3,016.00 7. PERMANENT TRAFFIC CONTROL AND SIGNS,COMPLETE IN EA 5 $410.00 $2,050.00 3 $1,230.00 2 $820.00 PLACE 8. TYPE II-A-A TRAFFIC MARKERS,COMPLETE IN PLACE EA 118 $5.30 $625.40 36 $190.80 82 $434.60 9. TRAFFIC STRIPING,4"SOLID YELLOW THERMOPLASTIC, LF 6204 $0.60 $3,722.40 4596 $2,757.60 1608 $964.80 COMPLETE IN PLACE 10. TRAFFIC STRIPING,24"SOLID YELLOW THERMOPLASTIC, LF 400 $5.80 $2,320.00 90 $522.00 310 $1,798.00 COMPLETE IN PLACE 11. TRAFFIC STRIPING,8'SOLID WHITE THERMOPLASTIC, LF 345 $1.20 $414.00 345 $414.00 COMPLETE IN PLACE 12. 8'PVC SCHEDULE 40 SLEEVES WITH CEMENT STABILIZED LF 290 $41.00 $11,890.00 232 $9,512.00 58 $2,378.00 SAND BACKFILL,COMPLETE IN PLACE 13. REMOVE EXISTING BARRICADES,COMPLETE IN PLACE EA 3 $120.00 $360.00 1 $120.00 2 $240.00 14. BARB WIRE FENCE,5 STRAND,COMPLETE IN PLACE LF 2971 $6.10 $18,123.10 2459 $14,999.90 512 $3,12320 15. 14-FOOT GALVANIZED STEEL RANCH GATE,COMPLETE IN EA 1 $870.00 $870.00 1 $870.00 0 $0.00 16. STREET LIGHTS-2'CONDUIT WITH STUB-UPS FOR STREET LF 2671 $11.25 $30,048.75 2159 $24,288.75 512 $5,760.00 LIGHTS AND PULL BOXES,COMPLETE IN PLACE 17. 4"THICK REINFORCED CONCRETE SIDEWALK,COMPLETE SY 1781 $30.50 $54,320.50 1440 $43,920.00 341 $10,400.50 IN PLACE SUBTOTAL PAVING AND APPURTENANCES ITEMS $526,115.15 TOTAL COST OF PAVING $526,115.15 $414,824.55 $111,290.60 C:\gary data 091108\LIA work files\riverstone\Hughes Road Overall Bid Cost_060112.xls Exhibit "B" to Amendment to Development Agreement RESOLUTION NO. R2006-43 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 SHS PARTNERS. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Agreement by and between the City of Pearland and SHS Partners, 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 an Agreement with SHS Partners. PASSED, APPROVED and ADOPTED this the 27th day of March A.D., 2006. `:) g<j TOM REID MAYOR ATTEST: UNG I G, MC TY S RETARY APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY Resolution 2006-43 3127/06 DEVELOPMENT AGREEMENT THIS DEVELO MENT AGREEMENT (this "Agreement") is made and entered into as of 5- , 2006, by and between the CITY OF PEARLAND, TEXAS, a home rule unicipality located in the counties of Brazoria, Harris, and Fort Bend, Texas (the "City"), and SHS Partners, Ltd. (the "Developer"), or its assigns, represented herein by its undersigned, duly authorized general partner. RECITALS A. Capitalized terms used in these recitals are defined in Article I,below. B. The property is currently within the corporate limits of the City. Developer desires to petition the City for consent to the annexation of the Property into MUD No. 28. The Developer and the City also intend to create a PUD or CDP over the Property. C. The Developer is the holder of the right to acquire and develop 300 acres within the Property. The Developer currently intends to develop and improve, in various phases, all or a portion of the Property as a planned residential, institutional, community, neighborhood services, and other uses permitted in conformance with the PUD or CDP. D. To facilitate the development of the Property,the City and Developer have agreed to take certain actions and to construct, or cause to be constructed various public improvements. E. This Agreement has been submitted to the City for consideration and review, and the City has taken all actions required to be taken prior to the execution of this Agreement to make the same binding upon the City according to the terms hereof. F. The Property is located within the Pasadena Independent School District and the San Jacinto Community College District. Ownership of the Property is currently fragmented into 124 separate parcels with 29 separate owners. The Property has a taxable value of approximately $700,000 and is inadequately served by transportation, utility, and drainage facilities. Consequently, the highest and best use for the Property can not be attained in its current condition and situation. G. The current RE zoning of the Property would allow approximately 1,170 single- family homes. The intended R1-PUD or RI-CDP would allow up to 1,968 single- family homes on the Property. The intention of the Parties is to limit the number of single-family homes to 1,200 if the College locates on the Property or to 1,600 if the College does not locate on the Property. 3/20/06 H. The park dedication requirements for the Project will be 12 acres if 1,200 lots are platted and 16 acres if 1,600 lots are platted on the Property. In addition to open space and recreation areas within the residential sections of the Property, Developer intends to acquire and convey to the City property within the Clear Creek Greenbelt to satisfy the public park dedication requirements. I. The City, after due and careful consideration, has concluded that the development of the Property as provided for herein will further the growth of the City, improve the environment of the City, increase the assessed valuation of the real estate situated within the City, foster increased economic activity within the City, increase employment opportunities within the City, and upgrade public infrastructure within the City. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficient of which are herby acknowledged, the parties hereby agree as follows: ARTICLE I. DEFINITIONS; INCORPORATION OF RECITALS 1.1 Definitions. Capitalized terms used herein, including the recitals hereto, shall have the meanings set forth in this section, unless otherwise defined, or unless the context clearly requires another definition. CDP means Cluster Development Plan with underlying R-1 zoning for the Property adopted pursuant to the City of Pearland Unified Development Code. City means the City of Pearland, Texas, a home rule municipality located in the counties of Brazoria, Harris, and Fort Bend,Texas. Clear Creek Greenbelt means the portion of the Property generally within the Tropical Storm Allison Recovery Project(TSARP) 100-year flood plain. College means the San Jacinto Community College. College Hughes Road Investment means the investment in Hughes Road made by the College in consideration of the donation of property by the Developer to the College. Commitment Period means the 18-month period beginning on the effective date of this Agreement during which the Parties have certain obligations as described in 3/20/06 2 Section 4.3. The Commitment Period may be extended only by mutual consent of the Parties. Developer means SHS Partners, Ltd. Donation Property means the minimum of seventy (70) acres, but up to one hundred (100) acres within the Project contemplated to be donated by Developer to College. Hughes Road Extension A means that portion of Hughes Road to be constructed from Pearland Parkway to the north line of the Clear Creek Greenbelt as shown in Exhibit B. Hughes Road Extension B means that portion of Hughes Road to be constructed adjacent to the Riverstone Ranch subdivision within the Property as shown in Exhibit B. Hughes Road Extension C means that portion of Hughes Road to be constructed from the north line of the Riverstone Ranch subdivision within the Property to the existing termination of Hughes Road as shown in Exhibit B. Hughes Road Initial Investment means the cost attributable to each Party for their respective segment of Hughes Road prior to any increases or deductions due to the reimbursement described in Section 4.4. MUD No. 28 means Brazoria County Municipal Utility District No. 28, which has been created under Article XVI, Section 59 of the Texas Constitution and operated under Chapters 54 and 49 of the Texas Water Code, as amended. Party or Parties means all or any of the City and the Developer, as applicable. Project means the real estate development planned for the Property, as more fully described in Paragraph C of the recital hereto. Property means the approximately 643-acre tract legally described in Exhibit A attached hereto and made a part hereof. PUD means a Planned Unit Development with underlying R-1zoning for the Property adopted pursuant to the City of Pearland Unified Development Code. TCEQ means the Texas Commission on Environmental Quality. 1.2 Recitals incorporated.The representations, covenants and recitations set forth in the recitals to this Agreement are material to this Agreement and are hereby 3/20/06 3 found and agreed to be true and correct, and are incorporated into and made a part hereof as though they were fully set forth in this article. ARTICLE II. COOPERATION Actions of the parties.The parties agree to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications (and, in the City's case, the adoption of such ordinances and resolutions), as may be necessary or appropriate, from time to time, to carry out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions and intent. ARTICLE III. EFFECTIVENESS OF AGREEMENT This Agreement shall become effective from and after its approval and execution by both parties. ARTICLE IV. DEVELOPMENT AND USE OF THE PROPERTY AND CONSTRUCTION OF IMPROVEMENTS 4.1 City's obligations. a) The City intends to take the following actions, and agrees to use its best efforts to do so: (i.) Consent to the annexation of the Property into MUD No. 28 or a future in-city MUD to be created pursuant to City requirements; (ii.) Create a PUD or CDP over the Property which will provide the appropriate zoning for single family residential, institutional, and community uses; (iii.) Commit to provide the water supply and wastewater treatment capacity ultimately required by the Project. The City may choose, by paying the proportionate costs, to oversize any water or sewer lines constructed by Developer. Approval of the preliminary plat for the Property, or portions of the Property, will formalize such commitment. City approval of the preliminary plat binds the City to an ultimate commitment of water and wastewater capacity to serve the Project which is expected to include up to 1,600 equivalent single family 3/20/06 4 connections to serve the residential uses and 160 equivalent single family connections to serve the College; (iv.) Provide annual water and wastewater capacity as required by the Project and as shown on the Developer's projected annual build-out schedules; (v.) Work with the Developer to obtain all necessary approvals, permits and consents from Brazoria and Harris Counties with respect to the improvements, and other matters necessary to the development of the Project. (vi.) Accept land dedication, as described in Section 4.2(a)(iv), in lieu of payment of fees to satisfy the park dedication requirements for the Project. 4.2 Developer's obligations. a) The Developer intends to take the following actions, and agrees to use it best efforts to do so: (i.) Petition MUD No. 28 for annexation of the Property into its boundaries (ii.) Prepare and implement the PUD or CDP, including the adoption of deed restrictions and other restrictive covenants consistent with the PUD or CDP and relevant City regulation; (iii.) Oversee and construct neighborhood improvements and amenities, such as water, sanitary sewer (initial extension from the vicinity of Pearland Parkway and Clear Creek Park subdivision) and drainage facilities and payment of impact fees to the City; (iv.) Acquire property within the Clear Creek Greenbelt to be dedicated to the City for public park purposes. If the conditions of Section 4.3 are satisfied during the Commitment Period, Developer will acquire 12 acres; if the conditions of Section 4.3 are not satisfied during the Commitment Period, Developer will acquire 35 acres. Consistent with City policy, such acreage will be in an accessible location determined by mutual consent of the Parties and will be included within the allowable area on which PUD or CDP densities are calculated; (v.) Advertise and market the Project; (vi.) Pay property taxes on the portion of the Property that is owned by the Developer; 3/20/06 5 (vii.) Maintain the portion of the Property that is owned by the Developer; (viii.) Construct the Project and pay associated land planning, legal architectural, engineering, surveying, and design expenses associated with the Project; (ix.) Provide the City with projected annual build-out schedules for the purpose of providing water and wastewater capacity to the Project; (x.) Provide to the City those documents necessary to coordinate the development of the Project, including documents which detail time lines and construction schedules and marketing information; (xi.) Plat the Property in a way that prohibits the connection of any streets within the Project to streets located in the Green Tee Subdivision; (xii.) Construct drainage improvements in accordance with City rules and regulations in a way that redirects the existing flow of Spring Gully away from the Green Tee Subdivision as shown in Exhibit B. Developer may use a portion, not to exceed 50 acres, of the Clear Creek Greenbelt to meet the detention requirements of the Project. The location of such detention facility shall be determined by mutual consent of the Parties. The Developer shall be responsible for any costs related to the acquisition of property for and development of Developer detention facilities within the Clear Creek Greenbelt; 4.3 Developer and City Obligations relating to the College. a) The Developer agrees to reserve the Donation Property during the Commitment Period. Developer's conveyance of the Donation Property to College shall be contingent upon College's investment of a minimum $1,500,000 in the Hughes Road Extension A and Hughes Road Extension B (the "College Hughes Road Investment"). b) During the Commitment Period, the Developer agrees to negotiate in good faith with College to reach agreement on the terms and conditions of the conveyance of the Donation Property including, but not limited to location, land planning coordination, water, sewer, drainage and detention cost allocations, and construction phasing. Additionally, the agreement between Developer and College shall provide for 1) College to accept the Donation Property and complete construction on an educational facility on the Donation Property within five years of the date of this Agreement; and 2) the Donation Property to revert to Developer if 3/20/06 6 such construction has not commenced five years from the date of this Agreement. c) During the Commitment Period, the City agrees to negotiate in good faith with College and other persons or agencies as required to secure College's commitment to accept the Donation Property and construct an educational facility on the Donation Property. d) If the conditions of this section have been satisfied prior to expiration of the Commitment Period, residential density within the PUD or CDP shall comply with the City's Unified Development Code, but in no case exceed 1,200 single-family residences on the Property. e) If the conditions of this section have not been satisfied prior to expiration of the Commitment Period, residential density within the PUD or CDP shall comply with the City's Unified Development Code, but in no case exceed 1,600 single-family residences on the Property. f) As more fully described in Article II of this Agreement, during the Commitment Period, the City shall accept, process, and take action on development permit applications including but not limited to zoning applications, the PUD or CDP, subdivision plats, construction plans, or building permit applications necessary to implement the terms, provisions and intent of this Agreement. 4.4 Developer and City Obligations relating to the construction of Hughes Road. a) The City agrees to design and construct the Hughes Road Extension A, which will be constructed as a two-lane half-boulevard road, with appropriate landscaping, irrigation and lighting, and shall be constructed in a timeframe agreeable to the City and the Developer. Acknowledging the critical relationship between the completion of the Hughes Road Extension A, the City agrees to use its best efforts to complete construction of the Hughes Road Extension A as soon as practicable, but in no case later than two years from the date of this Agreement; b) The Developer agrees to design and construct the Hughes Road Extension B, which will be constructed as a two-lane half-boulevard road, with appropriate landscaping, irrigation and lighting, and shall be constructed in a timeframe agreeable to the City and the Developer. Acknowledging the critical relationship between the completion of the Hughes Road Extension B,the Developer agrees to use its best efforts to complete construction of the Hughes Road Extension B as soon as practicable, but in no case later than the latter of two years from the date of this Agreement or six months following the completion of Hughes road Extension A; c) The College Hughes Road Investment shall be used to reduce each Party's obligations in proportion to each Party's Hughes Road Initial Investment. 3/20/06 7 d) Developer and City will cooperate to secure additional sources of funding for construction the Hughes Road Extension C, but neither party shall have any financial obligation for construction of this road segment; e) The Obligation of the City described in this Section 4.4 shall be paid from lawfully available funds that may be currently available in the budget year in which such improvements are designated to be constructed. The City agrees to use its best efforts to collect revenues, issue bonds, and appropriate funds as may be required to finance such improvements. ARTICLE V AUTHORITY; COVENANTS 5.1 Actions. The City covenants to the Developer and agrees that upon application of the Developer, the City will use its best efforts to the extent permitted by law to take such actions as may be required and necessary to process any application for amendments to the Zoning Ordinance that may be necessary or proper in order to insure the development of the Property and the Project. 5.2 Powers. a) The City hereby represents and warrants to Developer that the City 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. Accordingly, this Agreement constitutes the legal, valid and binding obligation of the City, is enforceable in accordance with its terms and provisions and does not require the consent of any other governmental authority. b) The Developer hereby represents and warrant to the City that Developer 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 all necessary actions of Developer. Concurrently with Developer's execution of this Agreement, Developer has delivered to the City copies of the resolution or other corporate actions authorizing the execution of this Agreement and evidencing the authority of the persons signing this Agreement on behalf of Developer to do so. Accordingly, this Agreement constitutes the legal, valid and binding obligation of Developer, and is enforceable in accordance with its terms and provisions. 5.3 Authorized parties. Whenever the provisions of this Agreement and other related documents and instruments or any supplemental agreements, any request, demand 3/20/06 8 approval, notice or consent of the City or Developer is required, or the City or Developer is required to agree or to take some action at the request of the other, such request, demand, approval, notice or consent, or agreement shall be given for the City unless otherwise provided herein by the City Manager or his designee and for Developer by any officer of Developer so authorized (and, in any event, the officers executing this Agreement are so authorized); and any party shall be authorized to act on any such request,demand, approval, notice or consent,or agreement. ARTICLE VI GENERAL PROVISIONS 6.1 Time of the essence. Time is of the essence of this Agreement. The parties will make every reasonable effort to expedite the subject matters hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation. 6_2 Default. 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 violate 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 of the alleged failure and shall demand performance. 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 6.3(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 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 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 the 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, 3/20/06 9 pending or threatened litigation, acts of God, war, acts of civil disobedience, fire or other casualty, shortage of materials, adverse weather condition [such as, by way of illustration and not limitation, sever rain storms or below freezing temperatures, or tornados] labor action, strikes or similar acts) the time for such performance 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. 6.3 Personal liability of public officials. To the extent permitted by State law, no public official or employee shall be personally responsible for any liability arising under or growing out of this Agreement. 6.4 Liability of the Developer, it successors and assignees. Any obligation or liability of the Developer whatsoever that may arise at anytime under this Agreement or any obligation or liability which may be incurred by the Developer pursuant to any other instrument, transaction or undertaking contemplated hereby shall be satisfied, if at all, out of the assets of the Developer only. No obligation or liability shall be personally binding upon, nor shall resort for the enforcement thereof be had to, the property of any of partners, officers, employees, shareholders or agents of the Developer, regardless of whether such obligation or liability is in the nature of contract, tort or otherwise. 6.5 Notices. Any notice sent under this Agreement (except as otherwise expressly required) shall be written and mailed, or sent by rapid transmission confirmed by mailing written confirmation at substantially the same time as such rapid transmission, or personally delivered to an officer of the receiving party at the following addresses: If to the Developer: SHS Partners, Ltd C/O John Santasiero Managing Partner 6115 Skyline Drive, Suite A Houston TX 77057 If to the City: City Manager City of Pearland 3519 Liberty Drive Pearland,Texas 77581 With a copy to: City Attorney City of Pearland 3/20/06 10 3519 Liberty Drive Pearland,Texas 77581 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 sent by rapid transmission 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 the Developer, as the case may be. 6.6 Amendments and waivers. Any provision of this Agreement may be amended or waived if such amendment or waiver is in writing as is approved by the City Council and the Developer. No course of dealing on the part of the City or the Developer nor any failure or delay by the City or the Developer 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. 6.7 Invalidity. In the event that any of the provisions contained in this Agreement shall be held unenforceable in any respect, such unenforceability shall not affect any other provisions of this Agreement and, to that end, all provisions, covenants, agreements or portions of this Agreement are declared to be severable. 6.8 Successors and assigns. No party to this Agreement shall have the right to assign its rights under this Agreement or any interest herein, without first giving to the other party notice from the assignor of such assignment and acknowledgement of such assignment from the assignee. 6.9 Exhibits, titles of articles, sections and subsections. The exhibits attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein, except that in the event of any conflict between any of the provisions of such exhibits and the provisions of this 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 this Agreement unless otherwise stated. Any reference herein to an exhibit shall be considered a reference to the applicable exhibit attached hereto unless otherwise stated. 6.10 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 either the Texas State District Courts of Brazoria County, Texas or the United States District Court for the Southern District of Texas. 3/20/06 11 6.11 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. 6.12 Term of Agreement. The term of this Agreement shall commence on the date first written above and shall continue until the date which is the earlier of(a) the completion of the Project, the Hughes road Extension A, the Hughes road Extension B, and the final payment from the City to the Developer pursuant to Section 4.4(c); (b) December 31, 2046. 6.13 No waiver of City standards. Except as may be specifically provided in this Agreement, the City does not waive or grant any exemption to the Property or the Developer with respect to City regulations or ordinances, including without limitation platting, permitting or similar provisions. 6.14 Approval by the parties. Whenever this 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 reasonably withheld or delayed. 6.15 Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement. 6.16 Interpretation. This Agreement has been jointly negotiated by the parties and shall no be construed against a party because that Party may have primarily assumed responsibility for the drafting of this Agreement. 3/20/06 12 IN WITNESS WHEREOF, the Parties have duly executed this Agreement pursuant to all requisite authorizations as of the date first above written. &twill/110 CITY �2‘%,, LgND4 CITY OF PEARLAND,TEXAS, a home ��.••'""" " = rule municipality xa• 'tom : toF. 3 \ By: & �'$ ...�' Mayor *is 00- • ng Lorfi ecre ( 47 AL) COUNTERSIGNED 44t7) Bill Eisen, City Manager Date Countersigned: 3 p711°. 40 APPROVED AS TO FORM: Darrin Coker, City Attorney Date: 3-3c=.— a L- DEVELOPER: SItS Partners, td. Manag' g Partne 3/20/06 13 EXHIBIT A' METES AND BOUNDS DESCRIPTION FOR A 663 . 1 ACRE TRACT OF LAND r- IN THE T. J. GREEN SURVEY, ABSTRACT No. 290 HARRIS COUNTY, TEXAS Being a 643 . 1 acre tract of land, out of the T. J. Green Survey, Abstract No. 290, Harris County, Texas; being all of that certain called 663 . 1 acres of land, same being Lots 1 thru 103 and Lots 108 thru 122 in the Allison Richey Gulf Coast Home Company Subdivision, recorded in Volume 4, Page 48 in the Map Records of Harris County, Texas; said 643 . 1 acre tract of land, being more particularly described by metes and bounds as follows; Commencing at the East corner of said Allison-Richey Gulf Coast Home Company Subdivision, same being at the intersection of the Southwest line of the E. M. House Survey, Abstract 1075, and the Northeast line of the T. J. Green Survey, Abstract 290 with the Northwest line of the W. D. C. Hall Survey, Abstract 23 and the Southeast line of the T. J. Green Survey, Abstract 290 ; THENCE North 45°00 ' 00" West, with the Northeast line of the T. J. Green Survey, Abstract 290 and the Southwest line of the E. M. House Survey, Abstract 1075, a called distance of 660 feet to the POINT OF BEGINNING of the herein described tract; THENCE North 45°00' 00" West, with the Northeast line of the T. J. Green Survey, Abstract 290 and the Southwest line of the E. M. House Survey, Abstract 1075, a called distance of 5078 . 30 feet to a point for the North corner of said Allison-Richey Gulf Coast Home Company Subdivision, same being the Southwest corner of the E. M. House Survey, Abstract 1075, the North corner of the T. J. Green Survey, Abstract 290, and the East corner of the D. H. M. Hunter Survey, Abstract 36; THENCE South 44°30 ' 00" West, with the Northwest line of said Allison-Richey Gulf Coast Home Company Subdivision, same being the Southeast line of the D. H. M. Hunter Survey, Abstract 36 and the Northwest line of the T. J. Green Survey, Abstract 290, a called distance of 3983 .40 feet to a point in the centerline of Clear Creek; THENCE Southeast, with the meanders of the centerline of Clear Creek to a point on the Southeast line of said Allison-Richey Gulf Coast Home Company Subdivision, same being the Northwest line of the W. D. C. Hall Survey, Abstract 23 and the Southeast line of T. J. Green Survey, Abstract 290 ; Page Two 643 . 1 Acres THENCE North 46°20 ' 00" East, with the Southeast line of the Allison-Richey Gulf Coast Home Company Subdivision, same being the Southeast line of said T. J. Green Survey, Abstract 290 and the Northwest line of the W. D. C. Hall Survey, Abstract 23 , a called distance of 6634 feet to a point for the East corner of Lot 108, and the South corner of Lot 107 of said Allison-Richey Gulf Coast Home Company Subdivision; THENCE North 45°00' 00" West, with the common line of said Lots 107 and 108 , a called distance of 660 feet to a point for the common corner of Lots 90, 91, 107 and 108 of said Allison-Richey Gulf Coast Home Company Subdivision; THENCE North 46°20 ' 00" East with the Southeast lines of Lots 87 thru 90 and the Northwest line of Lots 104 thru 107 of said Allison-Richey Gulf Coast Home Company Subdivision, a called distance of 1320 feet to the PLACE OF BEGINNING; containing 643 . 1 acres of land, more or less. Note : This document was prepared under 22 TAC 663 . 21, does not reflect the results of an on the ground survey, and is not to be used to convey or establish interests in real property except those rights and interests implied or established by the creation of reconfiguration of the boundary of the political subdivision for which it was prepared. DANNENBAUM ENGINEERING CORPORATION Consulting Engineers 3595 . 02/dml N.ri'' 643 . 1 Acres // �fe�ol�q��p I NNM..N...M.M.....N.O M. LAYMAN 9 5770 o suave!. 3/ OA G - •••••2,;...7,;:,•4•;',....i .`. '....`•• '-'•.v'''''' • ''' ,. -% ' • '''','•'i.". 1. •".., ' •••, 44 A- tt0,11 :r. 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