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R-2012-083-2012-06-25 RESOLl41TION NO. R2012-83 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO A REIMBURSEMENT AGREEMENT WITH THE PEARLAND ECONOMIC DEVELOPMENT CORPORATION. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Reimbursement Agreement by and between the City of Pearland and the Pearland Economic Development Corporation , 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 Reimbursement Agreement with the Pearland Economic Development Corporation. PASSED, APPROVED and ADOPTED this the 25th day of June, A.D., 2012. TOM REID MAYOR ATTEST: ,4EARI.gNO, Y NG , MC Y S RETAR APPROVED AS TO FORM: V NGHIEM DOAN DEPUTY CITY ATTORNEY Exhibit "A" Resolution No. 2012-83 REIMBURSEMENT AGREEMENT This Agreement is entered into this 25th day of June 2012, by and between the CITY OF PEARLAND, TEXAS (hereinafter "City"), and the Pearland Economic Development Corporation (hereinafter "PEDC"). WHEREAS, the PEDC is a Type B economic development corporation, created pursuant to Chapter 505 of the Texas Local Government Code, as amended; and WHEREAS, the City and PEDC desire the construction of the Business Center Drive roadway between CR 59 and Broadway west of SH 288 (hereinafter "Improvements"); and WHEREAS, Section 501.103 of the Texas Local Government Code (hereinafter "Code"), in pertinent part, defines the term "project" to mean "expenditures that are found by the board of directors to be required or suitable for infrastructure necessary to promote or develop new or expanded business enterprises, limited to: (1) streets and roads, rail spurs, water and sewer utilities, electric utilities, or gas utilities, drainage, site improvements, and related improvements; (2) telecommunications and Internet improvements . . ."; and WHEREAS, the City plans to exercise its rights pursuant to Chapter 313 of the Texas Transportation Code (hereinafter "Code") to construct the Improvements utilizing a road assessment procedure; and WHEREAS, the PEDC desires to fund a portion of the construction of the roadway Improvements, and the City desires to reimburse the PEDC with the road assessments collected in accordance with the Code; and WHEREAS, PEDC approved funding the Improvements for the City at its March 31, 2012, Board of Directors' meeting, after conducting a public hearing on the project; and WHEREAS, City and PEDC desire an agreement to set forth their respective responsibilities with regard to 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. City shall hire a contractor to construct the roadway Improvements shown in Exhibit "A" attached hereto as the "4-lane Parkside", "4-lane unfunded" and "2- lane unfunded". 2. Design of the Improvements shall be complete within one hundred-eighty (180) days of the effective date of this Agreement. Upon the approval of the plans and specifications by the City, City shall obtain competitive line item bids in accordance with Local Government Code Chapter 252 for the construction of the Improvements. City shall review the bids and award a contract to the lowest responsible bidder within thirty (30) days following approval of the plans and specifications of the Improvements by the City. City reserves the right to reject any and all bids for the construction of the Improvements. PEDC must approve the bid or any change order that would result in the actual cost of the Improvements exceeding the estimated costs. Following award of the bid by City, City shall cause construction of the Improvements to commence on or before March 1, 2013("Commencement Date"), and shall cause the Improvements to be completed in accordance with the plans and specifications within a reasonable period of time. 3. City shall on a timely basis submit, to the PEDC, invoices submitted to the City by the contractor selected to construct the Improvements. PEDC shall, within ten (10) days following receipt of an invoice pursuant to this section, review and approve the invoice payment for payment to the contractor constructing the Improvements. 4. The obligations of the parties pursuant to this Agreement are contingent upon City adopting an assessment ordinance in accordance with the Code authorizing City to assess the maximum percentage allowed for the cost of the Improvements against the properties ("Affected Properties") that abut the Improvements. The assessment ordinance is attached hereto as "Exhibit B". 5. The total cost of the Improvements is estimated to be $4,842,544, as itemized in Exhibit "C" hereto attached. PEDC shall fund the cost of the unfunded portions of the Improvements which is estimated to be $3,318,485. PEDC shall be reimbursed by the City an estimated $2,484,917, plus the interest, collected by the City as described in "Exhibit "B." Each assessment will be charged interest that will accrue beginning January 1, 2014 until payment is received. The variable interest rate each year shall be calculated based on the first rate of each calendar year published by the "Bond Buyer Index of 20 Municipal Bonds of General Obligation Debt." The maximum interest rate in any one year shall not exceed 8% per annum. The remaining unfunded portion of the Improvements not reimbursed by City through assessments will not be reimbursed to PEDC by City. The total estimated unfunded cost to PEDC that will not be reimbursed is approximately $833,568. The performance of the parties contemplated herein shall be contingent upon City's filing of assessment liens against the Affected Properties in the deed records of Brazoria County. Within thirty (30) days following City's collection of an assessment lien from one of the Affected Properties, City shall deposit the entire amount of the assessment collected, including interest, with the PEDC as reimbursement for PEDC's providing funding for the construction of the Improvements. 2 6. The initial term of this Agreement shall be for a period of thirty-six (36) months, commencing on the day of , 2012, and terminating on the day of , 2015, provided, however, the Reimbursement provisions contained in Section 5 of this Agreement shall survive the termination date contained herein until such time PEDC receives reimbursement payments from the City for all Affected Properties are collected. 7. This Agreement may only be amended, modified, or supplemented by written agreement and signed by both parties. 8. 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. 9. Nothing herein is intended to supersede or waive any City ordinance or regulation pertaining to such construction. 10. 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. 11. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Texas. 12. To accomplish execution of this Agreement, it may be executed in multiple counterparts. 13. The Parties agree that any suit arising out of or related to this Agreement shall be filed in Brazoria County Texas. 14. 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, City Manager 3519 Liberty Drive Pearland, TX 77581 3 If to PEDC: Pearland Economic Development Corporation Attn: Chairman 1200 Pearland Parkway, Suite 200 Pearland, TX 77581 Notice delivered in accordance with the terms hereof shall be effective upon receipt. In witness whereof, the parties have hereunto set their hands and signatures on the date first above mentioned. PEARLAND ECONOMIC DEVELOPMENT CORPORATION a Tex.; •'..n-. . it corporation (er es D. 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EXHIBIT B "ASSESSMENT ORDINANCE 6 ORDINANCE NO. 1464 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, CLOSING THE PUBLIC HEARING; ORDERING IMPROVEMENTS AND LEVYING ASSESSMENTS AGAINST VARIOUS PERSONS AND THEIR PROPERTY FOR THE PAYMENT OF A PART OF THE COST OF A PORTION OF PUBLIC IMPROVEMENTS IN THE CITY OF PEARLAND, TEXAS; PROVIDING FOR THE TIME WHEN SUCH ASSESSMENTS BECOME DUE AND PAYABLE; STIPULATING THE RATE OF INTEREST AND FIXING A CHARGE AND LIEN AGAINST SAID PROPERTY, MAKING SAID CHARGE A PERSONAL LIABILITY OF THE PROPERTY OWNERS OWNING PROPERTY ABUTTING ON SAID STREETS, PROVIDING FOR THE COLLECTION THEREOF; AND PROVIDING A SEVERABILITY CLAUSE. WHEREAS, Chapter 313 of the Texas Transportation Code, provides that the governing body of the City may determine the necessity for and order the improvement of a street or highway in the City, contract for the construction of the improvement in the name of the City, and provide for the payment of the cost of the improvement partly by the City and partly by assessments; and WHEREAS, the City desires to construct Business Center Drive as a four- lane roadway from Broadway southward to County Road 59 (the "Roadway"); and WHEREAS, the City caused an estimate of costs to so improve the Roadway to be prepared; and WHEREAS, the City caused notice of a public hearing on the proposed assessments to be published in the Pearland Reporter News on May 9, 2012, May 16, 2012, and May 23, 2012, and written notice to be mailed to the owners of properties abutting the Roadway as shown on the City's rendered tax roll; and WHEREAS, the City held a public hearing on June 4, 2012 to receive testimony regarding the proposed improvements, their estimated costs, the enhancement to the values of properties abutting the Roadway that the proposed improvements would create, and the assessment of abutting properties to pay a portion of the costs; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That it is hereby determined necessary that Business Center Drive be improved as described in Exhibits "A-1" and "A-2" (the "Improvements"), attached hereto and made a part hereof and that the same is hereby ordered to be improved. Section 2. That the public hearing to consider the proposed assessments to be levied against abutting owners of the Roadway be, and the same is hereby, closed, and all objections to the proposed assessments be, and the same are hereby, overruled. Section 3. The cost of the Improvements that is assessed against abutting property and the owners of the property shall be apportioned among the parcels of abutting property and the owners of the property in accordance with the front foot rule in accordance with Chapter 313 of the Texas Transportation Code. Section 4. That there shall be, and is hereby, levied an assessment against the parcels of property, hereinafter mentioned, and against the real and true owners thereof (whether such owners shall be correctly named herein or not), the sums of money itemized and shown opposite the description of the respective parcels of property and the several amounts assessed against the same, and the owners thereof, as far as such owners are known, being shown in Exhibit "B" attached hereto and made a part hereof (the "Assessed Amounts"). Section 5. Interest shall accrue on the Assessed Amounts at a variable rate, commencing the first day of the month after the City Engineer issues a certificate of substantial completion for the Improvements. The rate for each calendar month that interest shall accrue shall be the first rate published that calendar year by the "Bond Buyer Index of 20 Municipal Bonds of General Obligation Debt," divided by twelve, and shall not exceed 0.666 (2/3) percent per month (8% annually). The assessments shall mature and become due and payable in full, including any accrued interest, upon the earlier of the following: (a) within thirty (30) days of a sale of all or any portion of the abutting property subject to an assessment levied hereby; or (b) upon the filing of any plat or application for a permit with the City for the development of the abutting property subject to an assessment levied hereby. Section 6. Upon an assessment's maturing and becoming due and payable as set forth herein interest shall accrue at the rate of eight percent (8%) a year. Any payments made before the due date shall be accepted, and may be made in whole or in part at anytime and used to offset the total amount due including accrued interest. In the event there is failure to make full payment upon maturity, then at the option of the City of Pearland, or its assigns, such amount shall be and become immediately due and payable, and shall be collectible, together with reasonable attorney's fees and costs of collection, if incurred. Section 7. That the Assessed Amounts assessed against the said parcels of property, and the owners thereof as shown on Exhibit "B," and interest thereon before maturity as set forth in Section 5 and any interest thereon after maturity as set forth in Section 6, together with reasonable attorney's fees and costs of collection, if incurred, are hereby declared to be, and are made a lien upon the respective parcels of property against which the same are assessed as shown on Exhibit "B", and a personal liability and charge against the real and true owners of such property whether such owners be named herein or not, and the said liens shall be, and constitute, the first enforceable lien and claim against the property on which such assessments are levied, and shall be a first and paramount lien thereof, superior to all other liens and claims, except State, County, School District and City ad valorem taxes. Section 8. That, should any portion of this Ordinance be declared void, it is the intention of, and hereby declared by the City Council, that the balance and remainder of such Ordinance, or any parts not void, shall remain in full force and effect as though separately passed and approved. PASSED and APPROVED ON FIRST READING this the 25th day of June, A.D., 2012. c3,-)0Y-Ad TOM REID MAYOR ATTEST: y/ sue: : Y NG % ØT NG '� `'� a= Y S;f RETARY `�` " APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY PASSED and APPROVED ON SECOND AND FINAL READING this the 9t" day of July, A. D., 2012. TOM REID MAYOR ATTEST: - EARC,gi;�,,,: Y NG L , TR Y SE TARP (I.UM.u.PP. APPROVED AS TO FORM: r DARREN M. COKER CITY ATTORNEY EXHIBIT A-1: DESCRIPTION OF IMPROVEMENTS Construction of portions of Business Center Drive between County Road 59 and West Broadway. The Improvements shall consist of construction of the two and four lane segments of Business Center Drive labeled "unfunded" in Exhibit "A-2" at the estimated cost of$4,842,544.