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R98-35 04-27-98 RESOLUTION NO. R98-35 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO AN ADDENDUM TO THE DEVELOPMENT AGREEMENT WITH SOUTHWYCK SECTION THREE LTD., A TEXAS GENERAL PARTNERSHIP, EXECUTED ON AUGUST 25, 1997, FOR THE CONSTRUCTION OF TWO LANES OF SOUTHFORK DRIVE ALONG THE SOUTHERN BOUNDARY OF SOUTHWYCK SECTION 3 PHASE 4. BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Addendum to Development Agreement by and between the City of Pearland and Southwyck Sect/on Three Ltd,, a copy of which is attached hereto as Exhibit "A" and incorporated herein for all purposes, for the construction of two lanes of Southfork Drive along the southern boundary of Southwyck Section 3 Phase 4, is hereby authorized and approved. Section 2. The City Manager or his designee is hereby authorized to execute, and the City Secretary to attest, the attached addendum and counterparts thereof. PASSED, APPROVED and ADOPTED this the 27thday of April , A.D., TOM REID MAYOR ATTEST: / ~/[3-Y SEC [~rTA RY APPROVED AS TO FORM: DARRIN COKER INTERIM CITY ATTORNEY RECEIVED ADDENDUM TO DEVELOPMENT AGREEMENT (Exhibit "A" to Resolution No. R98-35) ~tJgl~ This Agreement is entered into this ~ ~ay of , 1998, by and between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), BRAZORIA COUNTY, TEXAS, (hereinafter "County"), and SOUTHWYCK SECTION THREE LTD., a Texas general partnership, acting by and through its General Parmer, Eandstar, Inc., represented herein by its President, Clinton Wong, the undersigned (hereinafter "Developer"). WHEREAS, a Development Agreement (hereinafter "Agreement") was executed between City, County, and Developer on August 25, 1997 (see Exhibit "A-l" attached hereto and incorporated herein for all purposes); and WHEREAS, Developer has successfully acquired a 2.2492 acre portion of the Southfork Drive right-of-way required by Paragraph 1 of the Agreement; and WHEREAS, Developer has unsuccessfully attempted acquisition of the remaining 3.7467 acre portion of the Southfork Drive right-of-way; and WHEREAS, Developer has requested the City and County to assist with the right-of-way acquisition. WITNESSETH: NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt of which is hereby acknowledged, it is hereby agreed as follows: 1. Paragraph 1 of the Agreement is deleted. 2. Developer shall provide to City and County a recorded copy of the right-of-way dedication for the 2.2492 acre tract. 3. Upon execution of this addendum, Developer agrees to contribute $30,000.00 to the City for costs associated with the acquisition of the 3.7467 acre right-of-way tract. Such costs shall include, but not be limited to, legal fees, appraisals, surveys, court costs, and payments for the value of the property. Upon acquisition of the tract, excess funds, if any, will be applied to the construction of Southfork Drive as defined in paragraph 4' of the Agreement. 4. City agrees to assist Developer by negotiating for the purchase of the right-of-way including, if necessary, the use of eminent domain. 5. The effect of this Addendum is limited to the terms above and all other terms of the original Agreement endure as previously agreed. This Agreement may only be amended, modified, or supplemented by written agreement and signed by all parties. 6. Upon completion of Developer's obligations pursuant to this Agreement, Developer shall no longer have any rights or obligations hereunder regarding the construction of Sonthfork Drive. 7. 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. 8. Nothing herein is intended to supersede or waive any City or County ordinance or regulation pertaining to such construction. 9. 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. 10. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Texas. 11. This Agreement and all obligations created hereunder shall be performable in Brazoria County, Texas. 12. In enforcing the performance of the provisions of this Agreement, all parties shall have the right to the exercise of all procedures available under the law including, but not without limiting the generality thereof, a writ of mandamus to command performance of any provision. No waiver of any breach or default of any provision of this Agreement shall be deemed a waiver of any subsequent waiver or default. If any party hereto is the prevailing party in any legal proceedings against any signatory on this Agreement brought under or with relation to this Agreement, such prevailing party shall additionally be entitled to recover court costs and reasonable attorney's fees from any non-prevailing party to such proceedings. 13. Resolution No. R98-35 and Court Order No. 15 of 8/25/97 are incorporated herein and made a part of this Agreement for all purposes. 14. To accomplish execution of this Agreement, it may be executed in multiple counterparts. 15. DEVELOPER HEREBY RELEASES, ACQUITS, AND FOREVER DISCHARGES THE CITY AND COUNTY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, DEMANDS, RIGHTS OR CAUSES OF ACTION OF WHATSOEVER CHARACTER OR 2 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 IMPLEMENTATION OF THE TERMS OF THIS AGREEMENT, UNLESS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE CITY OR COUNTY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS. DEVELOPER SHALL KEEP AND HOLD HARMLESS THE CITY AND COUNTY, 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 THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION, EXPIRATION, OR CANCELLATION OF THIS AGREEMENT. In witness whereof, the parties have hereunto set their hands and signatures on the date first above mentioned. SOUTHWYCK SECTION THREE LTD., a Texas general partnership, by and through its General Panner, LANDSTAR, INC. ATTEST: CITY OF PEARLAND, TEXAS ~//Young~,/C~t~ ~retg~ Paul Grohman, City Manager B~Z~~AS 3 STATE OF TEXAS COUNTY OF BEFORE ME, the undersigned Notary Public, on this day personally appeared Clinton Wong, President of Landstar, Inc., General Partner of Southwyck Section Three Ltd., a Texas general partnership, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ~ DAY OF ]] ~ aP~[ A. ~ J[ l~otar~'Public, State o'f t~as My Commission Expires: ,~.O~k. /~; t:~/dd>/ STATE OF TEXAS § COUNTY OF BRAZORIA § BEFORE ME, the undersigned Notary Public, on this day personally appeared Paul Grohman, City Manager of the City of Pearland, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS /~ ~DAY OF ~0ta^ , A.D., 19 ?~ . Notary-Public, ~tate of Texas ~~ erintedName:~bCet 3. ~0~;~1]( ~~~_ ~._ o~a: ~ My Commission Expires: l~/_~ -OI - 4 STATE OF TEXAS § COUNTY OF ~'~fi~2/4~, § ~BEFORE ME, the undersigned .4Notary Publi%. on this day personally appeared (}l~ 7~CJ~[6, , [~,F2r~//r~D,A [3~ Ct~.?~. of Brazoria County, Texas, ~own to me to ~e ~e person whose nme fs subscribed t~ ~e foregoing ins~ent and ac~owledged to me ~at he/she execut~ the sine for ~e pu~oses and consideration ~erein expressed. GIVEN UNDER MY~ND AND SEAL OF OFFICE THIS ]~ ~ DAY OF ~_~ , A.D., 19 ~. ~blic, State of Texas My Co~ission Expires: ~l- 1~- ~O~/ 5 DEVELOPMENT AGREEMENT (EXHIBIT "A" TO RESOLUTION R97-43) This Agreement is enterqd into this ,,~CCit~y,~,a[ll~kZ~T :TI9E~ ~;dre~ne~,eere~hoeunCtlyT.~' PEARLAND, TEXAS, (hereinafter ' Y ( SOUTHWYCK SECTION THREE LTD., a Texas general partnership, acting by and through its General Partner, Landstar, Inc., represented herein by its President, Clinton Wong, the undersigned (hereinafter "Developer"). WHEREAS, Developer plans to apply for a Preliminary and Final Plat for Southwyck Section 3 Phase 4; and WHEREAS, the development plans for Brazoria County Municipal Utility District Number 1 includes the extension of Southfork Drive along the southern boundary of Southwyck Section 3 Phase 4; and WHEREAS, the Developer, City, and County agree that it is the Developer's responsibility to construct two lanes of Southfork Drive adjacent to Southwyck Section 3 Phase 4 and that the cost of such improvements, as estimated in Attachment 1, is $110,825.00; and WHEREAS, the Developer, City, and County agree that it is advantageous to defer the construction of the extension of Southfork Drive until a later date; and WHEREAS, Developer, City, and County desire an agreement to set forth their respective responsibilities with regard to construction of Southfork Drive. WITNESSETH: NOW THEREFORE, in consideration of the tbregoing premises and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed as follows: 1. Developer agrees to coordinate the dedication of the right-of-way by Realty Advisory Group to County for the extension of Southfurk Drive, beginning at County Road 89 and continuing to the east line of Southwyck Section 3 Phase 4. Such dedication shall be in a form acceptable to the City and County. County shall withhold acceptance of the subdivision improvements until such right-of-way is properly accepted and recorded. 2. Developer agrees to deposit $110,825.00 with the City at the time of submission of the Final Plat application. Such fimds will be held jointly by the City and County in an interest bearing escrow account selected and administered by the City and Cnunty, until such time as the road is constructed or the right-of way is annexed into the City. After annexation, the funds shall be held and administered solely by the City. Deveh)per shall not be entitled to any refunds from this contribution amount. 3. Upon payment of the contribution amount defined in Section 2 of this Agreement, City and County agree to approve the Final Plat for Southwyck Section 3 Phase 4, provided thc plat meets ali other requirements as required by City and County Codes. 4. City and County agree to apply the contribution amouut and interest earnings solely to the construction of the extension of Southfork Drive easterly from County Road 89. The City and County shall determine the design, method, and time of construction for the extension of Southfurk Drive, until such time as the right-of-way is antlexed into the City, after which City shall determine the design, method, and time of construction for the extension of Southfork Drive. 5. This Agreement may only be amended, modified, or supplemented by written agreement and signed by all parties. 6. Upon };ompletion of Developer's obligatious pursuant to this Agreement, Developer shall no longer have any rights or obligations hereunder regarding the construction of Southfork Drive. 7. 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. 8. Nothing herein is iutended to supersede or waive any City or County ordinance or regulation pertaining to such construction. 9. 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, withnut invalidating the remainder of such provision or the remaining provisions of this Agreement. 10. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Texas. 11. This Agreement and all obligations created hereunder shall' be performable in Brazoria Cuunty, Texas. t2. In enfi)rcing the performance of the provisions of this Agreement, all parties shall have the right to the exercise of all procedures available under the law including, but not without limiting the generality thereof, a writ of mandamus to command performance of any provision. No waiver of any breach or default of any provision of this Agreement shall be deemed a waiver of any subsequent waiver or default. If any party hereto is the prevailing party in any legal proceedings against any signatory on this Agreement brought under or with relation to this Agreement, such prevailing party shall additionally be entitled to recover court costs and reasonable attorney's f~es from any non-prevailing party to such proceedings. 13. Resoluti(m No. R97 43 and Court Order No./o"~ ~t~o'/'~Iare incorporated I~crcin and made a part of Ibis I)cvclopmcnt Agreement fi)r all purposes. 14. To acc(miplish cxccuti(m of this Agreement, it may bc executed in multiph: c~untc~pa~ts. 15. 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 IMPLEMENTATION OF THE TERMS OF THIS AGREEMENT~ 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 DESTRUCT[ON OF PROPERTY CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF DEVELOPER, ITS AGENTS, EMPLOYEES, SUCCESSORS~ OR ASSIGNS, ARISING IN CONNECTION WITH THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION, EXPIRATION, OR CANCELLATION OF THIS AGREEMENT. In witness whereof, the parties have hereunto set their hands and signatures on the date first above mentioned. SOUTHWYCK SECTION THREE LTD., a Texas general partnership, by and through its General Partner, LANDSTAR, INC. Clinton Wong ,// President of Landstar,/lnq. ATTEST: CITY OF PEARLAND, /] STATE OF TEXAS § COUNTY OF § This instrun~ent was acknowledged before me on this o~wavYc:fS~, 1997, by Clinton Wong, President of Landstar, Inc., General Partner y Section 1~tree Ltd., a Texas general partnership, on behalf of said partnership. N6TARY PUBLIC, SATE OF TEXAS  Printed Name: MyCommissionExpires: STATE OF TEXAS COUNTIES OF BRAZORIA AND HARRIS This instrument was acknowledged before me on this~5~y of ~ ~ ~ ~ ~ , 1997, by Paul Grohman, City Manager of the City of Pearland, a Texas home rule muni~ality, on behalf of said municipality. NOTARY PUBLI~STATE OF TEXAS ~s~ Printed Name: STATE OF TEXAS § COUNTY OF BRAZORIA § Ql~i~nt w as, ac~mwled~ged ,}~re ,me !m thi; qB0t"/day ~ ~J~[~k~], 1997, by . ~ o razoria Uounty, Texas, on behalf of said c(ltlnty. ~-~-;s-~-~.s~--~'ss.'%-,,]~ NOTARY PubLIc, STATE OF TEXAS 4 ATTACHMENT 1 TO EXHIBIT 'A" TO RESOLUTION R97-43 $OUTHFORK DRIVE EXTENSION (Nong Soutr~yck Section ,3, Phase 4} (1,e00 LF) Unit _ It?~m Quantlt,/ Unit Oe~i~tion Cost Torsi I 1,600 OY ' R0~'~ay ExCavation " ~ 2.~5 $ ~375"' 2 4~00 SY Lima ~{a~llz~ 8u~rade $ 2.~0 $ 12,000 ~ 4500 7 la~ C0nc~te $ 18.00 $ 87,4~o 4 3200 6 In~ ou~ $ Z.a0 $ 8,400 5 lo0 Pavem~t Headers 6 2 Da~des $ 350.00 ~7~ Subto~ $ 1~0,625 Memo To: Darrin Coker From: Alan Mueller Subject: Southfork Drive Agreement Addendum Date: April 20, 1998 CC: Paul G-rohman As you may recall, the City Council approved an agreement with Southwyck Section Three, LTD (Clinton Wong) on August 25, 1997. The agreement calls for Southwyck to acquire the right-of- way and contribute $110,825 for the extension of Southfork Drive. Southwyck has acquired one portion of the right-of-way, but has had difficulty with the final 3.7467 acre portion. Southwyck has requested that the City assist them in acquiring the right-of-way. The addendum calls for the City to acquire the right-of-way, including the use of eminent domain if necessary. In exchange, Southwyck is required to contribute an additional $30,000. I believe this tract can reasonably be acquired for this amount. Attached is the proposed addendum and a copy of the original agreement. Please review the addendum and prepare a resolution for the April 27 Council meeting authorizing Paul to sign the agreement. Please contact me if you have any questions. Thanks.