R-2016-007 2016-01-25 RESOLUTION NO. R2016-7
A Resolution of the City Council of the City of Pearland,Texas,authorizing the
City Manager or his designee to enter into a Development and Subdivision
Agreement with Lake Park Pearland, Ltd, associated with the oversizing of
sanitary sewer improvements and the construction of other public
improvements (generally located at the intersection of Cullen Parkway and
McHard Road) in the estimated amount of $1,117,000.00.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Development and Subdivision Agreement, 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.
PASSED, APPROVED and ADOPTED this the 25th day of January, A.D., 2016.
C.= -)0).
TOM REID
MAYOR
ATTEST:
• NG LO"I �G, TRM j� r.
Y SE i• ARY '•
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
DEVELOPMENT AND SUBDIVISION IMPROVEMENT AGREEMENT
(Lake Park)
This Development and Subdivision Improvement Agreement ("Agreement") is entered
into this IA k"day of February, 2016, by and between the CITY OF PEARLAND,
TEXAS, (hereinafter "City"), and Lake Park Pearland, Ltd, (hereinafter "Developer").
City and Developer are the "Parties" and either may be referred to as a "Party".
WHEREAS, Developer plans to construct a planned unit development consisting of
town homes, office professional, and retail uses to be known as Lake Park Pearland
("Development") to be located on the property described on Exhibit "A" attached
hereto ("Property") and which will enhance the City's tax base and provide additional
housing and commercial space, which will be served by the City's sanitary sewer
system; and
WHEREAS, Developer plans to construct and dedicate to the City for operation and
maintenance the following public improvements for the Development: i) a 24" gravity
flow main with an interim lift station located at the Southdown WWTP ("Plant") per the
City's regional plan (the "Utility Improvements"), and ii) an extension of the Clear
Creek Trail System (with trailhead paved area, drinking water fountain and related
infrastructure, stretching station, benches, bike rack, 12 parking spaces, lighting and
related infrastructure, 10' wide concrete trail surface, and covered outdoor exercise
stations including 8 pieces of exercise equipment) to be located on the Brazoria County
Drainage District No. 4 easement, and as defined in Section II (Amenities Sec. VII) and
III (Exhibit B) of Ordinance No. 2000M-123 approving the mixed use Planned
Development (PD) for Pearland's Lake Park and approximately 1067' of 12" waterline
(the "Public Improvements") (the Utility Improvements and the Public Improvements
hereinafter collectively referred to as the "Improvements"); and
WHEREAS, City desires to cooperate with Developer to provide the Utility
Improvements, and at the same time, increase and improve the City's capacity to serve
other properties in the vicinity of McHard Rd ("Other Properties"); and
WHEREAS, Developer has filed for approval by City a final subdivision plat for the
Development; and
WHEREAS, City's Unified Development Code (UDC) mandates completion of all public
improvements required to serve the Development prior to approval of the final plat for
the Development; and
WHEREAS, approval of the final plat for Project ("Final Plat") requires the completion
of the Improvements (which are all the publicly dedicated improvements required to
serve the Development): and
WHEREAS, UDC Sections 3.1.8.3 and 3.1.8.4 provide a procedure whereby Developer
may postpone completion of the required public improvements until after final plat
approval upon execution of a subdivision improvement agreement and posting of
adequate security; and
WHEREAS, pursuant to the terms hereof, the City is responsible for 64% of the costs of
the Utility Improvements; and
WHEREAS, UDC Section 3.1.8(a)(5) provides latitude for the acceptance of alternative
security to insure completion of the required public improvements; and.
WHEREAS, City is a home rule city and has the authority to enter into this Agreement
pursuant to Texas Law, including, but not limited to Tex. Loc. Gov't Code Sec. 212.071
and Ch. 380; and
WHEREAS, City and Developer desire an agreement to set forth their respective
responsibilities with regard to providing the Improvements, to share the cost thereof
based on service capacity, and to provide adequate security for completion of the
Improvements.
WITNESSETH :
NOW THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is
hereby agreed as follows:
1. Developer shall install the Utility Improvements in accordance with the
specifications contained in Exhibit "B" attached hereto. The split of capacity in
the Improvements is 36% due to the Development ("Development
Percentage"), and 64% due to Other Properties the City desires to serve in the
future ("City Percentage"). Prior to approval of the Final Plat, City and
Developer shall execute an Escrow Agreement, in substantially the same form as
Exhibit "C" attached hereto (the "Escrow Agreement") with Old Republic Title
Company (Paige Dunlap), which is closing the purchase of the Property by
Developer from Cullen Stone, LLC with the form subject to approval of the title
company. Prior to approval of the Final Plat, Developer shall deposit funds
equal to 125% of Development Percentage and City shall deposit funds equal to
City Percentage into escrow ( Initial Escrow Deposit"), securing each Parties'
obligation associated with construction of the Utility Improvements. Within five (5)
days following the opening of the bids for construction of the Utility
Improvements, Developer and City shall review the line items to determine if
sufficient funds exist in the Initial Escrow Deposit to satisfy the Developer's
Percentage and City's Percentage. If the Initial Escrow Deposit is deficient, each
Party shall, prior to the award of the bid for construction of the Improvements,
deposit additional funds into escrow in an amount sufficient to satisfy that Party's
obligations hereunder. It is anticipated that the Utility Improvements may
necessitate change orders to complete the work. In the event change orders are
submitted to Developer, each change order shall be reviewed by City and
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a
Developer for approval. Within fourteen (14) business days following approval of
a change order by Developer and City, each Party shall deposit sufficient funds
into escrow to satisfy the Developer's Percentage and the City's Percentage of
the Utility Improvements. A change order, or any combination of change orders,
that exceeds the total amount of $50,000 shall be subject to the approval of the
City Council by resolution, which said approval shall not be unreasonably
withheld, and will be placed on the first available City Council agenda. Funds
deposited into escrow shall be utilized in accordance with Section 4 of this
Agreement be to pay for the Utility Improvements.
2. Upon approval of the plans and specifications by the City, Developer's engineers
shall obtain competitive line item bids in accordance with Local Government
Code Chapter 252 for the construction of the Utility Improvements. Developer
and the City will review the bids and Developer will award a contract to the
successful bidder. City reserves the right to reject any and all bids for the
construction of the Utility Improvements, no rejection shall be unreasonably
exercised, 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.
3. Following approval of the bids by the City, Developer shall cause construction of
the Utility Improvements to commence, and Developer shall cause the Utility
Improvements to be substantially complete, as determined by the City's
Engineer, in accordance with the plans and specifications on or before May 31,
2017, subject to force majeure. If Developer shall fail to cause construction to
commence by November 1, 2016, and following thirty (30) days' written notice to
Developer and the opportunity to cure such failure, the City shall have the right to
terminate this Agreement. Developer's engineer and the City Engineer or his
designee shall monitor the progress and workmanship of the contractor, and the
City will inspect the Utility Improvements during construction. Developer shall
cause the City to be named as an additional obligee under the performance
bond obtained by Developer from the contractor to secure the construction of the
Utility Improvements, a copy of which shall be provided to City prior to
commencement of construction of the Utility Improvements.
4. Developer shall submit to the City no more often than monthly its contractor's pay
estimates ("Request") with a letter from Developer's engineer stating that the
portion of the Utility Improvements enumerated in the pay estimate that is
allocable to the work performed has been constructed. Within five (5) days
following receipt of a Request, the City shall inspect and accept the progress of
construction of the Utility Improvements, unless the City provided a written list of
deficiencies within seven (7) days thereafter. Within seven (7) days following the
City's inspection, the City's Engineer shall approve or disapprove the Request in
writing, stating the specific reasons therefor. Such approval shall not be
unreasonably withheld. If the City approves a specific item, then the City may not
later disapprove that same item. If the City shall fail to reject any Request during
the seven (7) day review period, said Request shall be deemed approved. Upon
the written approval of a Request by the City's Engineer ("Approved Request"),
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Developer shall provide the Approved Request, to the escrow officer who shall
make payment(s) equal to each Approved Request pro-rate from the Escrow
(36%- Developer/64%- City) until the Utility Improvements are certified as
substantially complete by the City's Engineer. In the event Developer fails to
commence construction of the Utility Improvements on or before November 1,
2016, Developer fails to substantially complete the Improvements on or before
May 31, 2017, or Developer terminates this Agreement after Funds have been
deposited into escrow ("Construction Default"), subject to the provisions of
Section 17 herein and/or events of force majeure, City shall be entitled to
produce an affidavit of Construction Default to the escrow officer, and the escrow
officer shall release all remaining escrowed funds directly to the City which funds
shall be used by City to construct the Utility Improvements. Developer assigns to
City the right to use the plans and specifications for the Utility Improvements,
together with the right to retain Developers's Engineer to assist in the completion
of the Utility Improvements, if such action is undertaken by City. In the event the
escrowed funds are released to the City, the City shall not be obligated to
commence construction of the Utility Improvements prior to January 1, 2019. If
the City determines that the Utility Improvements, in whole or part, are not
necessary, or does not commence construction of the Utility Improvements by
January 1, 2019, then the City shall promptly release the unused funds to
Developer.
5. Developer shall complete construction of the Public Improvements within twenty-
four (24) months after recordation of the Final Plat. The Developer shall require
a performance bond from the contractor that the Developer retains to construct
the Public Improvements sufficient to cover the cost of the Public Improvements
and name the City as a co-obligee. The Developer shall warrant the Public
Improvements for a period of two (2) years following their acceptance by the City,
and shall provide the City a maintenance bond in an amount equal to one
hundred percent (100%) of the costs of the Public Improvements to cover any
warranty repairs needed to the Public Improvements during the warranty period.
6. Developer will post security for completion of the Public Improvements through a
lien against the Property in the form of Exhibit "E" attached hereto, which will
provide the City with the right to foreclose the Property if, after the notice and
opportunity to cure provided herein, the Developer (or its lender) fails to cure any
default hereunder, or other form of security provided in the UDC. Developer
may, with City's approval, change the form of security, so long as compliant with
the UDC. Developer shall submit to City contemporaneously with the execution
of this Agreement estimates of the cost for the Public Improvements for approval
by the City.
7. The initial term of this Agreement shall be for a period of eighteen (18) months,
commencing on the execution date, provided, however, that this Agreement shall
be automatically renewed in one (1) month increments until all of the obligations
of the parties hereunder have been fully discharged or specifically waived in
writing by the beneficiary thereof.
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8. This Agreement may only be amended, modified, or supplemented by written
agreement and signed by both parties.
9. All covenants and agreements contained by or on behalf of a Party in this
Agreement shall bind its successors and assigns and shall inure to the benefit of
the other Parties, their successors and assigns. The Parties may assign their
rights and obligations under this Agreement or any interest herein, only with the
prior written consent of the other Party, and any assignment without such prior
written consent, including an assignment by operation of law, is void and of no
effect; provided that, the Developer may, without consent, but with notice to the
City (i) make an assignment to a successor developer of the Development (or a
portion thereof) or an affiliate of the Developer, if such assignee specifically
assumes all of the obligations of the Developer hereunder (to the extent of the
land acquired by such assignee), or (ii) may make a collateral assignment in
favor of a lender. If such assignment of the obligations by the Developer
hereunder is effective, the Developer shall be deemed released from such
obligations. If any assignment of the obligations by the Developer hereunder is
deemed ineffective or invalid, the Developer shall remain liable hereunder.
10. Nothing herein is intended to supersede or waive any City ordinance or
regulation pertaining to such construction.
11. 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.
12. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Texas.
13. To accomplish execution of this Agreement, it may be executed in multiple
counterparts. This Agreement and the Escrow Agreement in the form attached
as Exhibit "C" shall be approved by the City, then signed by the City in triplicate
originals and submitted to Developer. Prior to approval of the Final Plat,
Developer shall execute this Agreement, the original Deed of Trust in the form
attached as Exhibit "E", and the original Escrow Agreement in the form attached
as Exhibit "C" and provide executed originals to the City. This Agreement will
be effective when signed by the City.
14. 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,
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ITS HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, OR ASSIGNS
AS A RESULT OF THE NEGLIGENT DESIGN 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. THE PROVISIONS OF THIS
SECTION SHALL SURVIVE THE TERMINATION, EXPIRATION, OR
CANCELLATION OF THIS AGREEMENT.
15. 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 NEGLIGENT DESIGN
BY DEVELOPER, ITS AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS
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. THE PROVISIONS
OF THIS SECTION SHALL EXPIRE CONCURRENTLY WITH THE TWO (2)
YEAR MAINTENANCE AND WARRANTY PERIOD SET FORTH IN SECTION
3.1.8.6(b) OF THE CITY'S UNIFORM DEVELOPMENT CODE.
16. The Parties agree that any suit arising out of or related to this Agreement shall be
filed in Brazoria County Texas.
17. 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: Clay Pearson
3519 Liberty Drive
Pearland, TX 77581
If to Developer: Lake Park Pearland, LLC
Attn: James Johnson
5599 San Felipe Suite 110
Houston, Texas 77056
If to Developer's Lender:
(to be completed by Developer)
Notice delivered in accordance with the terms hereof shall be effective upon
receipt.
18. Developer may terminate this Agreement by notice to the City if Developer does
not close its development loan for the Project by May 1, 2016. In the event
Developer exercises the right to terminate this Agreement, the City shall be
entitled to the release of all Escrow Funds as provided in Section 4 of this
Agreement.
19. 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 who has allegedly failed to perform. Such
notification shall specify 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 thirty
(30) days of the receipt of such notice. Upon request to the City with the contact
information for a lender, the City will include Developer's lender(s) in the notice
and will accept a cure tendered by a lender. Except as otherwise set forth herein,
no action taken by a Party pursuant to the provisions of this Section or 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 nonexclusive of any other remedy either set forth herein
or available to any Party at law or in equity.
20. In the event either Party is rendered unable, wholly or in part, by force majeure to
carry out any of its obligations under this Agreement, except the obligation to pay
amounts owed or required to be paid pursuant to the terms of this Agreement,
then the obligations of such Party, to the extent affected by such force majeure
and to the extent that due diligence is being used to resume performance at the
earliest practicable time, shall be suspended during the continuance of any
inability so caused to the extent provided, but for no longer period. As soon as
reasonably possible after the occurrence of the force majeure relied upon, the
Party whose contractual obligations are affected thereby shall give notice and full
particulars of such force majeure to the other party. Such cause, as far as
possible, shall be remedied with all reasonable diligence. The term "force
majeure," as used herein, shall include without limitation of the generality thereof,
acts of God, strikes, lockouts, or similar civil disturbances, acts of the public
enemy, orders of any kind of the government of the United States or the State of
Texas or any civil or military authority, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, hurricanes, storms, floods, washouts, drought,
arrests, restraint of government, civil disturbances, explosions, breakage or
accidents to machinery, pipelines or canals, partial or entire failure of water
supply resulting in an inability to provide water necessary for operation of the
Water Facility, and any other inabilities of any Party, whether similar to those
enumerated or otherwise, which are unlikely to occur and are not within the
reasonable anticipation or control of the Party claiming such inability, which such
Party could not have avoided by the exercise of due diligence and care.
21. Approvals and consents shall be effective without regard to whether given before
or after the time required for giving such approvals or consents. Approvals,
rejections, satisfaction of performance and consents shall not be unreasonably
withheld, conditioned or delayed
22. Time is of the essence in the performance of this Agreement.
23. The Parties intend this Agreement to be legally enforceable to the maximum
extent permitted at law or in equity. Specifically, the City waives governmental
immunity as to suit for only a claim to enforce specific performance and related
legal fees. DEVELOPER WAIVES ANY CLAIM FOR DAMAGES (OTHER THAN
LEGAL FEES) AND DEVELOPER'S SOLE AND EXCLUSIVE REMEDY IS TO
ENFORCE SPECIFIC ENFORCEMENT AND RELATED LEGAL FEES. This
Agreement is intended by the Parties to be a contract for goods or services
contemplated by Texas Local Government Code Section 271.151 et. seq.
The Parties recognize that Developer would not expend significant sums to
develop the Development and install the Improvements without the commitment
of the City to timely reimburse Developer as provided herein, and that the
Developer relied on the legal enforceability of the City's obligations hereunder.
The City is accepting the benefit of the Development and the Improvements. The
City represents that it has currently available and budgeted funds to be allocated
and designated for payment for the City Percentage of Project Cost.
24. The City shall, at its cost, obtain all necessary easements for the Utility
Improvements from the Plant to the Property. Any delay in the acquisition of
such easements past February 1, 2016 shall extend all deadlines in this
Agreement by 1 day for each day thereafter until all the easements are obtained,
such that the Improvements may be constructed therein. If the City has not
obtained the right of possession of the necessary easements by March 1, 2016,
then the City shall promptly commence legal condemnation proceedings with the
goal of obtaining possession no later than August 1, 2016.
25. The City shall, at its cost, provide a point of connection to the City wastewater
system for the Improvements at the location adjacent to the Property shown on
Exhibit "D" attached hereto.
[signatures follow on next page]
8
In witness whereof, the parties have hereunto set their hands and signatures effective
as provided in Section 11.
Lake Park Pearland, Ltd,
By: Lake Park Pearland GP, LLC, its sole
• -neral partner,
By:Name: J•Johnson
Its: Manager
Date signed: , 7c0
CITY OF PEARLAND,
a Texas m icipal corporation
By:
Clay ?arson
City Manag. 2I
Datesigne•. �` (Effective Date)
ATTEST:
Y. ,ng Lorfi,,r/ / ='' %\ E.
Secr: . ry
'1'4111111%0°N
EXHIBITS:
A- Legal Discription of the Property
B- Specifications of the Improvements
C- Form of Escrow
D- Location for the Tie-in to City Wastewater System
E- Form of Deed of Trust to Secure Performance
I
9
L_o.AStA.kr A
STATE OF TeXAS §
FA ' tV PA RI: s c §
This instrument was acknowledged before me on this -2 day of H„ ,i,, ,
2016, by James Johnson, Manager of Lake Park Pearland GP, LLC, a Texas limited liability
company, general partner of Lake Park Pearland, Ltd on behalf of said limited partnership.
1
William Bertrand 1 l��
Notary Public Bertrand
7833y it--u:
Parish of Lafayette Notary Public in and for
My Commission is for life
The State of Toxoa Lo 1/4.). fi L
My Commission Expires: , 1 i `4`c4.
M
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T
A.78339 Q
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STATE OF TEXAS § ''� ;i rAR�S�,:-
§ 111111Mt
BRAZORIA COUNTY §
This instrument was acknowledged before me on this 2.1 day of March , 2016, by
Clay Pearson, City Manager of the City of Pearland, a Texas home rule municipality, on behalf
of said municipality.
"""'w JENIFER K. SMITH {✓
or .0?Notary Public.Stole of Texas
;o,; :f Comm.Expires 07-15-2018
�•;;f;a.......' Notary ID 844803 No ry Pu lic in and for
The State of Texas
My Commission Expires: Jul j I6 2D1 V
1
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EXHIBIT A
Legal Description for the Property
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EXHIBIT B
Specifications for the Improvements
[See attached]
13
EXHIBIT
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;.11. II.,l�.cc-` P. 713.432.0120
January 20, 2016
James Johnson
Lake Park Pearland, Ltd.
5410 Piping Rock Lane.
Houston, Texas 77056
Lake Park Townhomes
114-35731
Offsite Work
1555 Cullen Blvd.
Pearland, Texas 77584
Dear Mr. Johnson,
The following is a cost estimate for the off-site work associated with the above referenced
project. The work includes clearing and installing erosion control, water lines, combination water
meter in vaults and the sanitary sewer line terminating at wastewater treatment plant. This work
is to be installed per the off-site civil plans dated 5/14/2015 by Kimley — Horn and Associates.
The cost breakdown associated with the work is as follows:
I. Excavation & Clearing $32,000.00
Excavation and clearing will be required prior to installing the utility portion of this scope.
II. Erosion Control $9,800.00
Erosion control measures will be installed as shown on the civil drawings prepared for
this project by Kimley Horn. The Environmental Protection Agency (EPA) and the Texas
Commission on Environmental Quality (TCEQ) require that a Storm Water Pollution
Prevention Plan (SWPPP) along with the erosion controls be implemented and installed
on all construction sites over one acre where the existing earth will be disturbed. It is
difficult to excavate and dig utility trenches without disturbing the existing earth, so this
will be required.
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I. Sanitary Sewer Systems All sanitary sewer lines along with related fitting and manholes will
be installed as shown on the civil drawings prepared by Kimley Horn. $805,912.00
o 10" PVC- 200 LF
O 24" PVC 3,200 LF
O 8" Force Main 1,000 LF
O Bore & Jack 10" (w/ 18" casing) 100 LF
O Bore & Jack 24" (w/42" casing) 100 LS
• Dewatering 3,400 LF
o 5' Diameter Manhole at —20-25' depth 10 EA
IV. Temporary lift station to convey flow via forcemain direct to Southdown WWTP headworks
$549,000.00
0 Temp Lift Station influent flowline = 22.30'
• Wet Well to be 5' deeper than influent flowline = 17'
O Flight or ABS w/ Flight rails (no exceptions allowed)
0 Facility to be temporary w/ life expectancy of 8-9 years based on planning
O Pumps to be sized for our site only initially w/ impeller upsize potential
O Starters/breakers to be sized for our site only initially with potential for upsize
providing for ultimate conditions
• Square D on panel
O Power to be provided through existing WWTP power drop (capacity to be verified)
• Temp station can connect to existing WWTP generator (capacity to be verified)
O Scada to be pulled from existing WWTP; KH to leave a channel for connection.
O Design to minimum Chapter 217 requirements
• Warning lights to be provided on the side of a box (not top)
Total Cost$1,396,712.00
Regards,
;( '2V"• L•
. -
Wil Brown
Brownstone Construction, Ltd.
15
r ..�. 6517 Iv1apleridge
r ll Holston,TX. 77081
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,) IL ll•.�y 1'. 71':1.132.01211
January 20, 2016
James Johnson
Lake Park Pearland, Ltd.
5599 San Felipe, Suite 110.
Houston, Texas 77056
Lake Park Pearland
114-35731
Site Improvement Agreement
1555 Cullen Blvd.
Pearlandi, Texas 77584
Dear Mr. Johnson,
The following is a cost estimate for the off-site work associated with the above referenced
project. The work includes: clearing and installing the trailhead parking area, 10' wide concrete
Trailway along Clear Creek within the permitted area of the DD4 easement, drinking fountain,
benches, bike rack, stretching receptacles, stretching station and covered outdoor exercise area
with 8 pieces of outdoor exercise equipment. This work is to be installed per the landscape
plans dated 8/21/2015 by Norris Design.
The cost breakdown associated with the work is as follows:
I. Trailhead Parking Area (12 spaces) $29,000
Excavation and the construction of 12 parking spaces for the trailhead area along with
striping.
II. Concrete Trail /Walking Path - $56,874
Excavation and the construction of a 10' wide concrete extension of the city's trail system
and trail lighting
III. Trail Amenities - $48,000
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Provide and install drinking fountains and associated infrastructure
2 benches,
1 bike rack,
1 stretching station,
3 trash receptacles
Covered outdoor exercise station (8 pieces of outdoor exercise equipment included).
IV. Water Systems $155,474.00
Approximately 1,067 LF of C-900 water line installed from the South West corner of the
site to the perpendicular location of the water-meter vault, as shown on the civil drawings
prepared for this project by Kimley Horn.
Total Cost$271,474
Regards,
Wil Brown
Brownstone Construction, Ltd.
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EXHIBIT C
Form of Escrow Agreement
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this Agreement ) is made by and among Lake Park
Pearland, LLC ("Developer"), the City of Pearland, Texas ("City"), and Old Republic Title
Company ("Escrow Agent") (collectively, the "Parties").
RECITALS
A. Developer and City have entered into a Development and Subdivision
Improvement Agreement made effective February , 2016 (the "Development
Agreement"), a copy of which is attached as Exhibit A hereto. Capitalized terms used herein but
not defined shall have the meanings set forth therefor in the Development Agreement.
B. Pursuant to the Development Agreement, Developer and City agreed to provide
NO/100 Dollars ($ .00) (the "Escrow Deposit") for the
purposes of funding the Utility Improvements (defined in the Development Agreement) (herein
referred to as "Utility Work").
NOW, THEREFORE, for and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
TERMS OF AGREEMENT
1. Deposit of Escrow Deposit. Developer and City shall deposit with Escrow Agent the
Escrow Deposit in accordance with Section 1 of the Development Agreement. Escrow Agent
shall hold the Escrow Deposit strictly in accordance with the terms of this Agreement and the
Development Agreement. Upon receipt of such funds, Escrow Agent shall acknowledge receipt
of and accept the Escrow Deposit upon and subject to the terms and conditions hereof.
2. Escrow Account.
(a) The Escrow Deposit immediately will be (i) deposited into a segregated, non-
commingled account (the "Escrow Account") with a depository bank selected by Escrow Agent
(the "Bank") or (ii) invested in an alternative investment approved in writing by the Parties.
Unless an alternative investment shall have been approved by the Parties in writing, the Escrow
Account will not be invested other than in an interest bearing account with the Bank. All interest
earned on the Escrow Deposit will be deposited in the Escrow Account and will become part of
the Escrow Deposit.
(b) The Escrow Account will be in the name of Escrow Agent, in trust for Developer and
City. The tax I.D. number on the Escrow Account will be Developer's tax I.D. number and all
interest or dividend income shall be attributed to and belongs to Developer.
(c) The Escrow Account will be under the sole control of Escrow Agent (subject to the
terms of this Agreement), and designated signers of Escrow Agent will have the sole and
18
exclusive authority to draw checks or make withdrawals on the Escrow Account.
(d) If the Escrow Account is with a bank, the monthly bank statement on such Escrow
Account will be sent to Escrow Agent, and Escrow Agent promptly will forward a copy of each
bank statement to Developer and City.
(e) Escrow Agent will have no responsibility or liability for the security of any funds in the
Escrow Account or for calculating, reporting, or paying any interest or dividends on the Escrow
Account. Developer and City will look solely to the Bank for such security and services.
Moreover, Escrow Agent will have no responsibility or liability for the amount of interest or
dividends paid by the Bank on the Escrow Account. For example, Escrow Agent may make
disbursements from the Escrow Account without regard to how the timing of such
disbursements may affect the amount of interest or dividends paid by the Bank on the Escrow
Account. Escrow Agent will have no responsibility or liability for, or with respect to, any loss or
damage resulting from any failure, refusal or inability of the Bank to disburse, or allow for
withdrawal of, the funds of the Escrow Account upon proper authorization or direction of Escrow
Agent. Developer and City hereby hold Escrow Agent harmless from the foregoing types of
responsibility and liability, except that Escrow Agent will be responsible for any investment
losses caused by Escrow Agent's failure to follow the terms of this Agreement.
(f) Disbursement of Escrow Deposit. Periodic payments will be made by the Escrow
Agent in accordance with Section 4 of the Development Agreement. In the event of uncertainty
or dispute, the Escrow Agent may require joint instruction from Developer and City to advance
funds to the contractor performing the Utility Work.
3. Termination. Upon the disbursement of all of the Escrow Deposit as set forth in
Section 2 hereof, this Agreement will terminate, and none of the parties hereto will have any
further rights or obligations hereunder.
4. Exculpation Provisions for Escrow Agent.
(a) It is agreed that (i) Escrow Agent will in no case or event be liable for any direct or
indirect damage caused by the exercise of Escrow Agent's discretion in any particular manner,
or for any other reason, except gross negligence or a willful breach with reference to its duties
hereunder; (ii) Escrow Agent will not be liable or responsible for the sufficiency or correctness as
to form, manner of execution, or validity of any instrument tendered to Escrow Agent hereunder,
nor as to identity, authority, or rights of any person executing the same; and (iii) Escrow Agent
will not be liable or responsible for Escrow Agent's failure to ascertain the terms or conditions, or
to comply with any of the provisions of any agreement, contract or other document other than its
instructions contained herein as amended from time to time in accordance with the terms
hereof.
(b) Developer and City hereby covenant and agree to indemnify and hold Escrow Agent
harmless (as to the City, to the extent permitted by applicable law) from and against any and all
losses, costs, damages or expenses (including reasonable attorneys' fees) it may sustain by
reason of its service as escrow agent hereunder, except if such loss, costs, damages or
expenses (including attorneys' fees) are incurred by reason of a willful breach of Escrow Agent's
obligations hereunder or gross negligence on its part.
(c) In the event of any disagreement between the parties to this Agreement resulting in
adverse claims or demands being made in connection with the Escrow Deposit, or in the event
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that Escrow Agent, in good faith, will be in doubt as to what action it should take hereunder,
Escrow Agent may, at its option, refuse to comply with any requests, claims or demands relating
to this Agreement, so long as such disagreements continue or such doubt exists, and in any
such event, Escrow Agent will be entitled to continue to refrain from acting until (i) the rights to
the applicable Escrow Deposit will have been fully and finally adjudicated by a court of
competent jurisdiction or (ii) all differences will have been adjusted and all doubt resolved by
written agreement among all of the persons making requests, claims or demands with respect to
the applicable Escrow Deposit and Escrow Agent will have been notified thereof in writing
signed by all such persons. In connection with any such disagreement as aforesaid, Escrow
Agent will have the right to institute a bill of interpleader, and any costs so incurred by Escrow
Agent may be payable out of the applicable Escrow Deposit, whichever is the subject of such
disagreement. The rights of Escrow Agent under this paragraph are cumulative of all other
rights that it may have by law or otherwise and will survive the termination of this Agreement.
5. Replacement of Escrow Agent.
(a) At any time during the term of this Agreement, Escrow Agent may resign and be
discharged of the obligations created by this Agreement by executing and delivering to
Developer and City, written notice of its resignation as Escrow Agent and specifying the date
when such resignation is to take effect. Any resignation of Escrow Agent will not become
effective until the earlier to occur of (i) acceptance of appointment by the successor Escrow
Agent or (ii) seventy-five (75) days after Escrow Agent's notice of resignation.
(b) Escrow Agent may be removed at any time by Developer and City by a written notice
executed by them to Escrow Agent, whereupon a successor Escrow Agent will be appointed
pursuant to subparagraph (d) below.
(c) If Escrow Agent shall resign, or be dissolved, or if its property or affairs shall be taken
under the control of any state or federal court or administrative body or agency because of
insolvency or bankruptcy or for any other reason, a vacancy shall forthwith exist in the office of
Escrow Agent, and a successor will be appointed pursuant to subparagraph (d) below.
(d) In the event of the removal or resignation of Escrow Agent pursuant to subparagraphs
(a), (b) or (c) above, Developer and City will endeavor in good faith to agree upon a successor
Escrow Agent to be appointed by written instrument, one copy of which instrument will be
delivered to the predecessor Escrow Agent, the successor Escrow Agent, Developer and City.
Any successor Escrow Agent appointed by Developer and City pursuant to this subparagraph
will, in Developer's and City's reasonable judgment, be adequately bonded, qualified and
reputable.
(e) Upon the acceptance of appointment by the successor Escrow Agent, the
predecessor Escrow Agent will be compensated from the applicable Escrow Deposit for any
remaining reasonable out-of pocket expenses for which it has not been previously reimbursed,
but will not thereafter be entitled to any further reimbursement or compensation for its former
duties as Escrow Agent hereunder.
(f) Any successor Escrow Agent appointed hereunder will execute, acknowledge and
deliver to Developer and City an instrument accepting such appointment hereunder, and
thereupon such successor Escrow Agent, without any further act will become duly vested with
all of the property, rights, powers, trusts, duties and obligations of its predecessor hereunder,
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with the same effect as if originally named Escrow Agent.
6. Miscellaneous.
(a) Developer will be responsible for any and all fees and expenses charged by Escrow
Agent in connection with this Agreement.
(b) The address of the Parties for purposes of notice hereunder will be as follows until
changed by written notice:
If to Developer: Attn:
If to City: Attn:
Escrow Agent: Attn:
(c) This Agreement will be governed by the laws of the State of Texas.
(d) The provisions of this Agreement may be amended only by a written agreement
signed by the Parties.
(e) This Agreement may be executed in multiple counterparts, each one of which will be
deemed an original, but all of which when disassembled, aggregated and taken together will
constitute one and the same instrument.
(f) This Agreement evidences the entire agreement between the undersigned relating to
the manner of holding the Escrow Deposit and supersedes all prior agreements,
understandings, negotiations and discussions, oral or written, of the parties relating to such
subject matter.
(g) The terms of this Agreement will be binding upon and will inure to the benefit of
the Parties and their respective successors and permitted assigns, including any debtor in
possession or bankruptcy trustee acting for any of said parties.
(h) Nothing in this Agreement will be construed to make Developer the agent or partner of
City, or City the agent or partner of Developer, for any purposes.
(i) Time is of the essence of this Agreement and all time periods hereunder.
(j) Upon disbursement of all of the Escrow Deposit in accordance with the terms hereof,
this Agreement will terminate and no Parties hereunder will have any further rights or obligations
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hereunder, provided, however, the termination of this Agreement will not terminate the rights
and obligations of Developer and City under the Development Agreement; provided, further,
however, that the obligations of the parties to fund the cost of Utility Work in accordance with the
Development Agreement will not be abrogated or diminished by the estimated amounts of the
construction or other costs initially deposited by the parties pursuant hereto, it being understood
and agreed that the Parties will remain responsible for paying all costs of the Utility s Work as
provided in the Development Agreement.
(k) Each Party represents and warrants to the other Parties that they have full lawful
right, power and authority to execute, deliver and perform the terms and obligations of this
Agreement, and all of the foregoing have been duly and validly authorized and approved by all
necessary actions.
(I) This Agreement constitutes the legal, valid and binding obligation of the Parties, and
is enforceable in accordance with its terms and provisions.
[Signature Page Follows]
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The Parties execute this Agreement to be effective as of , 2016.
DEVELOPER:
By:
Name:
Title:
CITY:
By:
Name:
Title:
ESCROW AGENT:
By:
Name:
Its:
Exhibits:
A- Development and Subdivision Improvement Agreement
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0
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Exhibit A
Development and Subdivision Improvement Agreement
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EXHIBIT D
Location for Tie-in to City Wastewater System
[To be attached and initialed once agreed upon by
the City and Developer upon completion of
engineering]
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EXHIBIT E-
Form of Deed of Trust to Secure Performance
AFTER RECORDING RETURN TO:
DEED OF TRUST TO SECURE PERFORMANCE
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY
INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS
FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER
AND/OR YOUR DRIVER'S LICENSE NUMBER.
Date: February , 2016
Grantor: LAKE PARK PEARLAND,LTD., a Texas limited partnership
Grantor's Mailing Address(including county):
5599 San Felipe Suite 110
Houston,Harris County,Texas 77056
Trustee: Damn Coker
Trustee's Mailing Address(including county):
c/o City of Pearland
3519 Liberty Drive
Pearland, Brazoria County,Texas 77581
Beneficiary: CITY OF PEARLAND, TEXAS, a Texas home rule city
Beneficiary's Mailing Address (including county):
City of Pearland
Attn: Clay Pearson
3519 Liberty Drive
Pearland,Brazoria County,Texas 77581
Grantor hereby grants, bargains, sells, releases, conveys, warrants, assigns, transfers, mortgages,
pledges, sets over and confirms unto Trustee, its successors and assigns, in trust, WITH POWER OF
SALE AND RIGHT OF ENTRY AND POSSESSION, to have and to hold forever for the security and
benefit of Beneficiary and its successors and assigns, all of Grantor's right, title and interest in and to the
Property(defined below),rights, interests and estates,now existing or hereafter coming into existence
26
•
A. Obligations to be performed by Grantor which are secured hereby:
Reference is hereby made to the terms,covenants,provisions and conditions stated and set forth in
that certain Development and Subdivision Improvement Agreement (the "Agreement") dated February
_, 2016, by and between the CITY OF PEARLAND, TEXAS, and -LAKE PARK PEARLAND, LTD,
as Developer,which Agreement shall be deemed to be incorporated herein by reference as fully and to the
same extent as if set forth herein verbatim. Grantor recognizes and acknowledges that under the
Agreement that Grantor undertake to construct certain Public Improvements(as defined in and pursuant to
the terms of the Agreement) in connection with the Property (defined below) (hereinafter, the
construction requirements arising under the Agreement to be performed by Grantor will collectively be
referred to herein as the"Obligations").
B. Property (including any improvements): See Exhibit "A" attached hereto and incorporated
herein for all purposes,together with the following:
(i) all the buildings and other improvements now on or that may be placed hereafter on such
land during the existence of this lien;
(ii) all of Grantor's rights, title and interest in all materials, equipment, fixtures or other
property whatsoever now or hereafter attached or affixed to or installed in, or used in
connection with the improvements now erected or hereafter to be erected on such land,
including, but not limited to, all water, sewer, storm drainage and utility layouts, street
lights, street signs, transformers and underground electricity, utility lines and equipment
(whether owned individually or jointly with others), and all renewals or replacements of or
substitutions for any of the foregoing;
(iii) all of Grantor's right, title and interest in all easements and rights of way used now or at
any future time in connection with any of the foregoing property or as a means of ingress
to or egress from such property or for providing utilities to such property;
(iv) all of Grantor's right, title and interest in all interests of Grantor in and to any streets,ways,
alleys and/or strips of land adjoining such land or any part thereof;
(v) all rights,estates,powers and privileges appurtenant or incident to the foregoing; and
(vi) any leasehold interest assigned by Beneficiary to Grantor by Assignment of Lease of even
date herewith.
The Land, together with the items listed in clauses (i) through (vi) above, are collectively referred
to herein as the"Property."
C. Other Exceptions to Conveyance and Warranty:
This deed of trust is subject to all matters of record on the date hereof to the extent such matters
actually exist and affect the Property(the "Permitted Encumbrances").
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D. Beneficiary's Rights
1. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to all
rights and responsibilities of Trustee (the Trustee herein named and any substitutes or successors are
referred to herein for convenience as the"Trustee").
2. If Grantor fails to perform any of Grantor's Obligations under and pursuant to the
Agreement, Beneficiary may perform all or any portion of those Obligations, advance funds required and
then be reimbursed by Grantor on demand for any sums so advanced, including attorney's fees, plus
interest on those sums from the dates of payment at the highest legal rate [or, if there is no highest legal
rate applicable to such sums and indebtedness,then at the rate of fourteen percent (14%)per annum]. The
sum to be reimbursed shall be secured by this deed of trust to secure performance.
3. Beneficiary may file a sworn notice of such advancement in the office of the county clerk
where the Property is located. The notice shall detail the dates, amounts and purposes of the sums
advanced and the legal description of the Property.
4. If Grantor fails on written demand to reimburse Beneficiary for the sums advanced, or
Grantor shall fail or refuse to observe and perform any covenant or obligation under this deed of trust to
secure performance, or Grantor shall otherwise default in the performance of its Obligations under and
pursuant to the Agreement, Beneficiary may:
a
a. request Trustee to foreclose this lien, in which case Beneficiary or Beneficiary's agent
shall give notice of the foreclosure sale as provided by the Texas Property Code, as then amended; and
b. purchase the Property at any foreclosure sale by offering the highest bid and then have the
bid credited to the reimbursement of Beneficiary for sums advanced by Beneficiary and if, on any
purchase of the Property at such foreclosure sale by Beneficiary as aforesaid, there shall remain unpaid
any sums or indebtedness, or there shall remain unsatisfied any Obligations, the payment or performance
of which are to be made or discharged by Grantor, and for which Beneficiary has been indemnified by
Grantor hereunder,then in such event,Beneficiary, at its sole and absolute discretion, may elect to:
(1) retain and hold any balance of the bid and apply the same from time to time toward
payment of the costs of performing the Obligations which are to be performed by Grantor, and for which
Beneficiary has been indemnified by Grantor hereunder, in such order and in such manner as Beneficiary,
in Beneficiary's reasonable discretion, may elect, and Grantor hereby assigns to Beneficiary any such
balance of the bid, but Beneficiary shall account to Grantor for any surplus remaining at such time as all
such Obligations for which Grantor is responsible have been fully satisfied and discharged; and/or
(2) apply any such balance of the bid as a credit toward the then outstanding balance, if
any, of those Obligations involving the payment of money, in such manner as Beneficiary, in
Beneficiary's reasonable discretion, may elect, and Grantor hereby consents to the application of any such
balance of the bid as a credit on the then outstanding balance of those Obligations involving the payment
of money,but Beneficiary shall account to Grantor for any surplus remaining.
E. Trustee's Duties
If requested by Beneficiary to foreclose this lien,Trustee shall:
1. either personally or by agent give notice of the foreclosure sale as required by ,
28
Section 51.002 of the Texas Property Code (as said section and chapter now exist or may be
hereinafter amended or succeeded)
2. sell, or offer for sale, the Property at public sale to the highest bidder for cash
during a three hour period between the hours of ten o'clock a.m. and four o'clock p.m., on the
first Tuesday of any month, at the area officially designated by the county commissioners (or
if the county commissioners have not designated an area, then by the area selected by
Beneficiary or Trustee) for holding such sales at the courthouse of any county in the State of
Texas in which any part of the Property is situated, after having given notice of the date, the
time period,place and terms of said sale in accordance with the laws of the State of Texas then
in force and governing said sales of real property and improvements under powers of sale
conferred by deeds of trust. The Property shall be sold by posting, or causing to be posted, at
least twenty-one (21) consecutive days prior to the date of said sale, written or printed notice
thereof at the courthouse door in each of the counties in which the Property is situated,
designating the county where the Property will be sold and designating the date, the time
period, the place and the terms of sale. The written notice shall include the earliest time at
which the sale will be held. To the extent required by applicable law, such sale shall begin at
the time stated in the notice of sale. A copy of such notice shall also be filed in the office of
the County Clerk in each county of the State of Texas in which any part of the Property is
situated at least twenty-one (21) consecutive days before the date of said sale of the Property.
Beneficiary shall have the right to become the purchaser at any sale held by any Trustee or
substitute or successor Trustee, or by any receiver or public officer. Any Beneficiary
purchasing at any such sale shall have the right to credit the secured indebtedness owing to
such Beneficiary upon the amount of its bid entered at such sale to the extent necessary to
satisfy such bid. Grantor authorizes and empowers the Trustee to sell the Property, in lots or
parcels or as a whole, and to execute and deliver to the purchaser or purchasers thereof good
and sufficient deeds of conveyance thereto of the estate of title then existing on the Property
and bills of sale with covenants of general warranty. In addition to the posting and filing of
notices hereinabove provided, and for so long as required by law, no foreclosure under the
power of sale herein contained shall be held unless Beneficiary, at least twenty-one (21) days
preceding the date of sale and in the manner prescribed by law, shall have served written
notice of the proposed sale which designates the County where the Property will be sold and
designates the date, time period, the place and the terms of sale by certified mail on Grantor.
Service of such a notice by certified mail shall be completed upon deposit of such notice,
postage prepaid and properly addressed to each such person or entity at the address for Grantor
indicated on the first page of this Security Instrument, in a Post Office of the United States
Postal Service or in an official depository under the care and custody of the United States
Postal Service. The affidavit of a person knowledgeable of the facts to the effect that such
service was completed shall be prima facie evidence of the fact of service.
3. from the proceeds of the sale,pay, in this order:
a. first,to the payment of reasonable expenses of foreclosure;
b. second, to Beneficiary, the full amount advanced, reasonable attorney's fees and
other sums and charges secured hereby and/or due and unpaid;
c. third, if, on any foreclosure of the Property as aforesaid, there shall remain unpaid
any sums or indebtedness, or there shall remain unsatisfied any Obligations, the payment or performance
29
of which are to be made or discharged by Grantor, and for which Beneficiary has been indemnified by
Grantor hereunder,then in such event, Beneficiary may, in its discretion,elect to:
(1) retain and hold any balance of the bid and apply the same from time to time
toward payment of the costs of performing the Obligations which are to be performed by Grantor, and for
which Beneficiary has been indemnified by Grantor hereunder, in such order and in such manner as
Beneficiary, in Beneficiary's reasonable discretion, may elect, and Grantor hereby assigns to Beneficiary
any such balance of the bid, but Beneficiary shall account to Grantor for any surplus remaining at such
time as all such Obligations for which Grantor is responsible have been fully satisfied and discharged;
and/or
(2) apply any such balance of the bid as a credit toward the then outstanding
balance, if any, of those Obligations involving the payment of money, in such manner as Beneficiary, in
Beneficiary's reasonable discretion,may elect, and Grantor hereby consents to the application of any such
balance of the bid as a credit on the then outstanding balance of those Obligations involving the payment
of money,but Beneficiary shall account to Grantor for any surplus remaining;
d. fourth,any amounts required by law to be paid before payment to Grantor; and
e. fifth,to Grantor, any balance.
F. General Provisions
1. If any of the Property is sold under this deed of trust to secure performance, Grantor shall
immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become a
tenant at sufferance to the purchaser, subject to an action for forcible detainer.
2. Recitals in any Trustee's deed conveying the Property will be presumed to be true.
3. Proceeding under this deed of trust to secure performance, filing suit for foreclosure or
pursuing any other remedy will not constitute an election of remedies.
4. This lien shall be superior to liens later created even if Beneficiary has made no
advancements when later liens are created.
5. If any portion of the advancement, sums and other indebtedness referred to herein cannot
be lawfully secured by this deed of trust to secure performance, payments shall be applied first to
discharge that portion.
6. Beneficiary may request that the Trustee sell less than the whole of the Property to enforce
Grantor's performance of the Obligations, and in such event the sale or sales by Trustee of less than the
whole of the Property shall not exhaust the power of sale herein granted, and the Trustee is specifically
empowered to make a successive sale or sales under such power until the whole of the Property shall be
sold and this deed of trust to secure performance and the lien, security interest and assignment hereof shall
remain in full force and effect as to the unsold portion of the Property just as though no sale or sales have
been made; provided, however, that Grantor shall never have any right to require the sale or sales of less
than the whole of the Property, but Beneficiary shall have the right, at its sole election, to request Trustee
to sell less than the whole of the Property.
7. No sale under this deed of trust to secure performance shall extinguish the lien created by
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this instrument, it being expressly understood and agreed that any foreclosure sale and deed hereunder
shall be made subject to the then unsatisfied portion of the Obligations and the lien or liens securing
same; and it is agreed that any such foreclosure sale and conveyance shall not in any manner affect any
indebtedness which may thereafter become due and owing to Beneficiary under the covenants and
provisions of this deed of trust to secure performance, it being expressly understood and agreed that this
deed of trust to secure performance and all rights of Beneficiary hereunder shall be and remain in full
force and effect so long as the Obligations for which Grantor is responsible hereunder, or any part thereof,
remain to be satisfied and discharged.
8. The liens created by this instrument securing the performance by Grantor of the
Obligations shall be and remain secondary and inferior to any Lien(but only as specifically defined in this
deed of trust. With respect to the Loan Documents, Grantor hereby agrees as follows:
a. Any default under the terms of the Loan Documents shall constitute a default under
the terms of this deed of trust to secure performance; further, Grantor hereby agrees that
Beneficiary, at its sole option, may cure any such default under the Loan Documents, and that if
Beneficiary does such, it may still enforce its remedies under this deed of trust to secure
performance;
b. Grantor hereby authorizes Beneficiary to inquire of the holder of the Note and Lien
at any time as to the outstanding principal balance thereof and accrued interest thereon and as to
whether any default exists thereunder, and said holder is hereby authorized by Grantor to furnish
such information to Beneficiary;
c. If for any reason the indebtedness evidenced by the Loan Documents is accelerated,
or the collateral covered thereby or any part thereof is sold or attempted to be sold, whether by
power of sale,judicial action or otherwise, or any other remedial action or proceedings are taken
or instituted with respect to Grantor and/or the collateral covered by the Loan Documents or any
part thereof, Grantor will indemnify and hold Beneficiary harmless from and against any loss, cost
or expense incurred by Beneficiary, including, without limitation, reasonable attorneys' fees (1) in
contesting or participating in any such action taken or instituted or in restating the Loan
Documents or (2)incurred by Beneficiary on account of the acceleration of the indebtedness
evidenced by the Note and secured by the Lien,the sale of any of the collateral covered thereby,or
the purchase or payoff by Beneficiary of the Note, and any and all such loss, cost or expense shall
be secured by this deed of trust to secure performance; and
d. Grantor hereby agrees that it will, immediately upon the receipt thereof, forward to
Beneficiary copies of any and all correspondence received from the holder of the Note and Lien or
from any other party relative to the Loan Documents at the address stated herein, and in the event
Beneficiary receives notice of acceleration of the Note, demand for payment thereof or of a
foreclosure or other enforcement action under the Lien or any other instrument or document
securing the payment of the Note, Grantor will immediately send a copy of that demand or notice
to Beneficiary and Trustee at the addresses stated herein via Federal Express or some other
delivery or mail service which will deliver the same within twenty-four(24)hours.
9. When the context requires, singular nouns and pronouns include the plural, and vice versa;
the masculine gender shall include the neuter and the feminine, and vice versa.
10. This deed of trust to secure performance shall bind, inure to the benefit of and be exercised
by the successors in interest and assigns of all parties.
31
11. This deed of trust to secure performance shall be a security agreement between Grantor, as
the debtor, and Beneficiary, as the secured party, covering all equipment, fixtures, furnishings, inventory
and other articles of personal property now or hereafter attached to or used in or about the Property or that
are necessary or useful for the complete and comfortable use and occupancy of the improvements thereon
for the purposes for which they were or are to be attached, placed, erected, constructed or developed, or
which are or may be used in or related to the planning, development, financing, construction or operation
of any improvements on the Property, and all renewals of or replacements or substitutions for any of the
foregoing, whether or not the same are or shall be attached or affixed to the Property, or any portion
thereof. In addition to Beneficiary's other rights hereunder, Beneficiary shall have all rights of a secured
party under the Texas Business and Commerce Code (the "Code"). Grantor shall execute and deliver to
Beneficiary all financing statements that may be required by Beneficiary to establish and maintain the
validity and priority of Beneficiary's security interest, and Grantor shall bear all costs thereof, including
all Code searches reasonably required by Beneficiary. If Beneficiary should dispose of any of such items
of personal property pursuant to the Code, ten (10)days' written notice by Beneficiary to Grantor shall be
deemed to be reasonable notice; provided, however, Beneficiary may dispose of such property in
accordance with the foreclosure procedures of this deed of trust to secure performance in lieu of
proceeding under the Code. Grantor shall give advance notice in writing to Beneficiary of any proposed
change in Grantor's name, identity or structure, and shall execute and deliver to Beneficiary, prior to or
concurrently with, the occurrence of any such change, all additional financing statements that Beneficiary
may require to establish and maintain the validity and priority of Beneficiary's security interest with
respect to any of the property described or referred to herein. Some of the items of the personal property
described herein are goods that are or are to become fixtures related to the real property, and it is intended
that, as to those goods, this deed of trust to secure performance shall be effective as a financing statement
filed as a fixture filing from the date of its filing for record in the real estate records of the county in
which the Property is situated. Information concerning the security interest created by this instrument may
be obtained from Beneficiary, as secured party, at the address of Beneficiary stated above. The mailing
address of the Grantor, as debtor,is as stated above.
12. All notices permitted or required to be given hereunder or given in regard to this deed of
trust to secure performance by one party to the other shall be in writing and the same shall be given and
be deemed to have been served and given (a) if hand delivered, when delivered in person to the address
set forth hereinabove for the party to whom notice is given, or (b) if mailed, when placed in the United
States mail, postage prepaid, by certified mail, return receipt requested, addressed to the party at the
address hereinabove specified. Any party may change its address for notices by written notice theretofore
given in accordance with this paragraph.
13. If the interest of Beneficiary in the property covered hereby, or any part thereof, shall be
endangered or shall be attacked, directly or indirectly,Grantor hereby authorizes Beneficiary,at Grantor's
expense, to take all necessary and proper steps for the defense of such interest, including, without
limitation, the employment of counsel, the prosecution or defense of litigation and the compromise or
discharge of claims made against such interest. All costs and expense incurred by Beneficiary in
furtherance of the defense of Beneficiary's interest hereunder shall be secured by this deed of trust to
secure performance.
14. Grantor shall keep every part of the property covered hereby, including all improvements,
in good operating order, repair and condition and shall not commit or permit any waste thereof. Grantor
shall make promptly all repairs, renewals and replacements necessary to such end. Grantor shall
discharge all claims for labor performed and material furnished therefor, and shall not suffer any lien of
mechanics or materialmen to attach to any part of the Property. Grantor will comply with the
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requirements of all governmental authorities exercising jurisdiction over the Property, or any portion
thereof.
15. If all or any part of the Property or any interest therein is sold or transferred without the
prior written consent of Beneficiary, such shall constitute a default under this deed of trust to secure
performance and Beneficiary shall be entitled to exercise any and all rights and remedies afforded it
hereunder.
16. Any forbearance by Beneficiary in exercising any right or remedy hereunder shall not be a
waiver of or preclude the exercise of any right or remedy. No waiver of any default on the part of Grantor
or breach of any of the provisions of this deed of trust to secure performance or of any other instrument
executed in connection with the performance by Grantor of the Obligations referred to herein shall be
considered a waiver of any other subsequent default or breach, and no delay or omission in exercising or
enforcing the rights and powers herein granted shall be construed as a waiver of such rights and powers,
and likewise no exercise or enforcement of any rights or powers hereunder shall be held to exhaust such
rights and powers, and every such right and power may be exercised from time to time. Beneficiary, in
addition to the other rights and remedies afforded it hereunder or at law or in equity, is specifically given
the right to seek specific performance of Grantor's Obligations secured hereby.
17. Grantor, upon the request of Beneficiary, shall execute, acknowledge, deliver and record
such further instruments and do such further acts and deeds as may be necessary, desirable or proper to
carry out the purposes hereof and to subject to the liens and security interests created hereby any property
intended by the terms hereof to be covered hereby, including specifically, but without limitation, any
renewals, additions, substitutions, replacements, improvements or appurtenances to the property covered
hereby.
18. Grantor shall cause this deed of trust to secure performance and all amendments,
supplements and extensions thereto and substitutions therefor to be recorded, filed, rerecorded and refiled
in such manner and in such places as Beneficiary shall reasonably request, and, in connection therewith,
Grantor shall pay all such recording, filing, rerecording and refiling fees, title insurance premiums, and
other charges.
19. Grantor shall promptly pay when due all obligations regarding the ownership and
operation of the property covered hereby, except any such obligations which are being diligently
contested in good faith by appropriate proceedings and as to which Grantor, if requested by Beneficiary,
shall have furnished to Beneficiary security satisfactory to Beneficiary.
20. Other than the Liens described herein, Grantor shall not, without the prior written consent
of Beneficiary, grant any lien, security interest or other encumbrance covering all or any portion of the
Property covered hereby,regardless of whether any such lien, security interest or other encumbrance shall
be subordinate to the lien of this deed of trust to secure performance.
21. To the extent that any sums secured hereby are used to pay any outstanding lien, charge or
encumbrance affecting the Property, or portion thereof, such proceeds will be deemed to have been
advanced by Beneficiary at Grantor's request, and Beneficiary shall be subrogated to all rights, interests
and liens owned or held by any owner or holder of such outstanding liens, charges and encumbrances,
irrespective of whether such liens, charges or encumbrances are released of record.
22. If any provision of this deed of trust to secure performance is held to be illegal, invalid or
unenforceable under present or future laws effective while this deed of trust to secure performance is in
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effect, the legality, validity and enforceability of the remaining provisions hereof shall not be affected
thereby, and in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically
as a part of this deed of trust to secure performance a provision that is legal, valid and enforceable and is
as similar in terms to such illegal,invalid or unenforceable provision as may be possible.
23. Time is of the essence of this deed of trust to secure performance and in the performance
by Grantor of its Obligations secured hereby.
24. The parties hereto each acknowledge that they and, if they so choose, their respective
counsel have reviewed and revised this deed of trust to secure performance and that the normal rule of
construction that any ambiguities are to be resolved and construed against the drafting party shall not be
employed in the interpretation of this deed of trust to secure performance.
25. Grantor has all requisite power and authority to own and operate this Property and to enter
into this deed of trust to secure performance and to carry out the terms hereof.
26. The person executing this deed of trust to secure performance on behalf of Grantor, by his
or her execution hereof, represents and warrants that he or she is fully authorized to do so, and that no
further action or consent on the part of the party for whom they are acting is required to the effectiveness
and enforceability of this deed of trust to secure performance against such party following such execution.
27. In accordance with the provisions of Section 26.02 of the Code, Beneficiary makes the
following disclosure to Grantor:
"THIS DEED OF TRUST TO SECURE PERFORMANCE, TOGETHER WITH THE TERMS AND
PROVISIONS OF THE AGREEMENT, REPRESENT 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."
EXECUTED as of the date first above written.
GRANTOR:
LAKE PARK PEARLAND,LTD.
By: Lake Park Pearland GP,LLC
Its Sole General Partner
By:
Name: James Johnson
Title: Manager
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Exhibit "A"
Legal Description
[To be Attached]
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STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on the day of February, 2016, by James
Johnson, Manager of Lake Park Pearland GP, LLC, General Partner of LAKE PARK PEARLAND,
LTD., a Texas limited partnership, on behalf of said limited partnership.
Notary Public, State of Texas
Printed Name of Notary
My Commission Expires:
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