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R2001-0101 08-13-01 RESOLUTION NO. R2001-101 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 SHADOW CREEK RANCH DEVELOPMENT COMPANY LIMITED PARTNERSHIP FOR THE OVERSIZlNG OF THE KIRBY DRIVE SANITARY SEWER LINE. 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 Shadow Creek Ranch Development Company Limited Partnership, 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 Shadow Creek Ranch Development Company Limited Partnership for the oversizing of the Kirby Drive sanitary sewer line. PASSED, APPROVEDandADOPTEDthisthe 13 dayof August , A.D., 2001. ~ TOM REID MAYOR ATTEST: Y~J[JNG I.~ / - ~7'Y SEGRETARY ~ ~/ APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY DEVELOPMENT AGREEMENT (for Kirby Drive Sanitary Sewer) This Agreement is entered into this 13th day of August, 2001, by and between the CITY OF PEARLAND, TEXAS (hereinafter the "City"), and SHADOW CREEK RANCH DEVELOPMENT COMPANY LIMITED PARTNERSHIP, a Nevada limited partnership (hereinafter the "Developer"). WHEREAS, the City consented to the creation of creation of up to six In-City Municipal Utility Districts on February 12, 2001, and the Developer desires to develop property located in proposed Brazoria County Municipal Utility District No. 26 (the "District"); and WHEREAS, the Developer plans to construct a sanitary sewer line and appurtenances necessary for the City to provide sanitary sewer service to the District (the "Facilities") and to dedicate said Facilities to the City for operation and maintenance; and WHEREAS, the City desires to cooperate with the Developer to provide sanitary sewer service to the District, and at the same time, increase and improve the City's capacity to serve other properties in the vicinity of the District which requires off-site and onsite oversizing; and WHEREAS, the City and the Developer desire an agreement to set forth their respective responsibilities with regard to providing sanitary sewer service to the District. WlTNESSETH: 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. The Facilities needed to serve the Developer's requirements for the District are described in the attached Exhibit "A." 2. To serve additional tracts, the City has requested that the Developer oversize the Facilities. 3. The estimated costs for the Facilities to serve the Developer's requirements are $364,123.00. The estimated costs for the Facilities as requested by the City are $446,683.00. The total estimated oversizing cost to be reimbursed by the City to the Developer is $82,560.00 as described in Exhibit "A." Upon completion of the project, actual costs will be accounted and reported to the City. Actual oversizing reimbursement shall not exceed the total estimated oversizing cost by more than 5% without prior approval of the City. 4. The Developer will cause its engineers, reasonably approved by the City, to prepare plans and specifications for the constmction of the Facilities desired by the City. 5, The bid specifications shall require each bidder to reflect the difference in the cost of constructing the Facilities as reflected in the plans and specifications and the cost which --756094? would have been incurred had the Facilities been constructed to the size required by the Developer. 6. Upon approval of the plans and specifications by the City, the Developer's engineers will obtain competitive line item bids in accordance with Chapter 252 of the Local Government Code for the construction of the Facilities in accordance with the plans and specifications. The bids will be reviewed by the Developer and the City and a contract will be awarded to the successful bidder by the Developer. The City reserves the right to reject any and all bids for the construction of the Facilities. 7. Upon approval of the bids by the City, the Developer shall cause the work to be completed in accordance with the plans and specifications. The Developer's engineer and the City Engineer or designee shall monitor the progress and workmanship of the contractor. The Developer shall advance the funds necessary to pay the contractor for the work performed. 8. The City will reimburse the Developer, as defined in Paragraph 3, within 30 days after acceptance of the improvements by the City and evidence of paid invoices. 9. The initial term of this Agreement shall be for a period of one year, commencing on the date on which the Agreement is entered into, as mentioned above. Upon the expiration of the initial term, this Agreement may be automatically renewed in one year increments contingent upon need and the necessary funds being appropriated for said project in accordance with the City's annual budgeting process. 10. This agreement may only be amended, modified, or supplemented by written agreement and signed by both pa~ties. 11. 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. 12. Nothing herein is intended to supersede or waive any City ordinance or regulation pertaining to such construction. 13. 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. 14. This agreement shall be construed and enforced in accordance with and governed by the laws of the State of Texas. -7860947 15. This agreement and all obligations created hereunder shall be performable in Brazoria County, Texas. 16. Resolution No. is incorporated herein and made a part of this Development Agreement for all purposes. 17. To accomplish execution of this agreement, it may be executed in multiple counterparts. 18. THE DEVELOPER HEREBY RELEASES, ACQUITS, AND FOREVER DISCHARGES THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, DEMANDS, RIGHTS OR CAUSES OF ACTION OF WHATSOEVER CHARACTER OR NATURE, INCLUDING ATTORNEYS' FEES, ARISING FROM OR BY REASON OF ANY AND ALL BODILY OR PERSONAL INJURIES, INCLUDING DEATH AND MENTAL ANGUISH, DAMAGE TO PROPERTY AND THE CONSEQUENCES THEREOF WHICH MAY BE SUSTAINED BY DEVELOPER, ITS HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, OR ASSIGNS AS A RESULT OF THE CONSTRUCTION BY DEVELOPER OF THE IMPROVEMENTS REFERENCED ABOVE, UNLESS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS, DEVELOPER SHALL KEEP AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL COST, LIABILITY, DAMAGE OR EXPENSE OF ANY NATURE AND HOWSOEVER CAUSED, INCLUDING ATTORNEYS' FEES, CLAIMED OR RECOVERED BY ANYONE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR PERSONS OR DAMAGE TO OR DESTRUCTION OF PROPERTY CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF DEVELOPER, ITS AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS ARISING IN CONNECTION WITH SUCH CONSTRUCTION BY DEVELOPER. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION, EXPIRATION, OR CANCELLATION OF THIS AGREEMENT. [EXECUTION PAGE FOLLOWS] -7860947 1N WITNESS WHEREOF, the parties have hereunto set their hands and signatures on the date first above mentioned. SHADOW CREEK RANCH DEVELOPMENT COMPANY LEVIITED PARTNERSHIP, a Nevada limited partnership By: SHADOW CREEK RANCH, INC., a Nevada corporation, its general partner // ~Ga~ook, President ATTEST: CITY OF PEARLAND, a Texas municipal corporation -786094?