HomeMy WebLinkAboutResolution - 2012-R0449 - Agreement - S&S Commercial Properties Ltd.- Design And Construction 66Th St - 11/29/2012Resolution No. 2012-80449
November 29, 2012
Item No. 5.6
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, a Development Agreement for design
and construction of a portion of 66`h Street, by and between the City of Lubbock and S&S
Commercial Properties, LTD, and related documents. Said Agreement is attached hereto
and incorporated in this resolution as if fully set forth herein and shall be included in the
minutes of the City Council.
Passed by the City Council on November 29, 2012
Gr C. RO ERTSON, MAYOR
ATTEST:
I
Reber a Garza, City Secret
APPROVED AS TO CONTENT:
Marsha Reed, P.E. Chief Operating Officer
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
vw:ccdocs/RES.Agrmt-S&S Commercial Properties LTD
October 3, 2012
Resolution No. 2012-RO499
STATE OF TEXAS §
COUNTY OF LUBBOCK §
DEVELOPMENT AGREEMENT
for
DESIGN and CONSTRUCTION
of
PORTION OF 66TH STREET
This Development Agreement ("Agreement") is entered into this 29thday of
November , 2012, by and between the City of Lubbock, Texas, a Texas home rule
municipal corporation (the "City") and S&S Commercial Properties, LTD ("the
Developer").
WITNESSETH:
WHEREAS, Developer is the developer of certain real property adjacent to 66th
Street, located within the corporate limits of the City;
WHEREAS, Developer is required, pursuant to Chapter 36 of the Code of
Ordinances of the City, to participate in the paving of 66th Street from Iola Avenue to
Milwaukee Avenue, and to bear the cost of such participation;
WHEREAS, a portion of 66th Street is related to the Developer's development
and is unpaved (the "Unpaved Portion"), said Unpaved Portion of 66th Street being
depicted on Exhibit "A", attached hereto, and is not the responsibility of Developer to
participate in such paving;
WHEREAS, the Unpaved Portion is approximately six percent (6.2%) of the
contract that the Developer will enter into related to the 66th Street paving project;
WHEREAS, the City desires that such Unpaved Portion now be paved;
Developer Agreement Page 1 of 9
WHEREAS, the City, to realize cost savings due to economies of scale, now
desires that Developer perform such paving of the Unpaved Portion of 66th Street and
that the City reimburse Developer for such costs; and
WHEREAS, the City and Developer now desire to enter into this Agreement
wherein City agrees to pay to Developer the City's allocated portion of the costs related
to the paving of the Unpaved Portion of 66th Street.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
obligations set forth herein, the sufficiency of which is hereby acknowledged, the City
and Developer hereby agree as follows:
SECTION 1 Developer Activities
1.01 Developer shall proceed in a diligent manner to completion of the
Unpaved Portion of 66th Street in accordance with all applicable laws,
City of Lubbock Code of Ordinances, and City of Lubbock policies.
Completion of paving shall occur on or before March 31, 2013.
Completion of the Unpaved Portion of 66th Street shall not be deemed to
have occurred unless and until the City shall have accepted such paving as
being in compliance with the terms of this Agreement.
1.02 Developer shall comply with applicable laws related to private
performance of public improvements, including without limitation,
Subchapter C of Chapter 212 of the Local Government Code.
SECTION 2 City Participation
2.01 The City shall, subject to the terms hereof, participate in the paving of the
Unpaved Portion of 66th Street to an amount not to exceed, thirty five
Developer Agreement Page 2 of 9
thousand six hundred sixty six and 911100 Dollars ($35,666.91), based on
the actual bid prices of the Unpaved Portion. It is expressly hereby
represented and warranted by Developer to City that the total contract
price regarding this project is estimated to be five hundred seventy four
thousand five hundred seventy three and 27/100 Dollars ($574,573.27).
2.02 The City shall pay to Developer the actual bid price amount, as limited
herein, upon completion of the Unpaved Portion of 66th Street, and
inspection and acceptance thereof by the City. It is expressly stipulated
that the City shall owe no funds to Developer unless and until the
Unpaved Portion of 66th Street is completed in accordance with all laws,
City of Lubbock Code of Ordinance provisions, and City of Lubbock
policies.
2.03 Under no circumstance or event shall the participation of the City exceed
thirty percent (30%) of the total contract price contemplated by subchapter
C of Chapter 212 of the Texas Local Government Code. In the event such
participation, as computed and limited herein by the "not to exceed" sum
provided in Section 2.01, above, shall so exceed thirty percent (30%) of
the contract price, the City shall be obligated to pay only thirty percent
(30%) of the contract price, but never more than the "not to exceed" sum
provided in Section 2.01, above.
SECTION 3 Performance Bond
3.01 Developer shall execute a Performance Bond for the construction of the
Unpaved Portion of 66th Street to insure completion of the project. The bond
Devetoper Agreement Page 3 of 9
must be executed by a corporate surety in accordance with Chapter 2253,
Government Code, State of Texas. The performance bond shall be submitted to
the City Engineer of the City of Lubbock on or before beginning any work on the
Unpaved Portion. In the event such performance bond is not so submitted, this
Contract shall be null and void and of no force and effect.
SECTION 4 Additional Safeguards
4.01 All of Developer's books and other records related to the Developer's
paving of 66th Street shall be available for inspection by the City at the
offices of Developer at 6306 Iola Avenue, Suite 200, Lubbock, Texas,
upon and during business hours thereof.
Developer shall furnish actual contract documentation to the City that
depicts the actual costs of paving of 66th Street prior to request for
payment from the City.
SECTION 5 Term
5.01 The term of this Agreement shall begin on the date of execution of this
Agreement by City and end upon the complete performance of all
obligations by each party to this Agreement.
SECTION 6 Indemnity
6.01 Developer agrees to defend, indemnify, and hold City, its officers, agents,
employees, and elected officials, harmless from and against any and all
claims, lawsuits, liabilities, judgments, costs and expenses for any harm
for which recovery of damages is sought that may arise out of, be
Developer Agreement Page 4 of 9
occasioned by or related to Developer's breach of any of the terms or
provisions of this Agreement.
SECTION 7 Events of Default / Remedies
7.01 A default shall exist if either party fails to perform or observe any material
covenant or obligation contained in this Agreement, or if any material
representation and/or warranty provided for herein is not true or correct.
The non -defaulting party shall notify the defaulting party in writing upon
becoming aware of any event that constitutes a default. Such notice shall
specify the nature of the default and what action, if any, the non -defaulting
party requires or proposes to require with respect to curing the default.
7.02 If a default shall occur and be continuing, after ten (10) days written notice
to cure such default, the non -defaulting party may pursue any and all
remedies it may be entitled to at law, contract, equity, or otherwise,
including without limitation, termination of this Agreement. It is agreed
that failure to declare this Agreement terminated upon the default of
Developer for any of the reasons set forth above shall not be construed as
a waiver of any of the City's rights hereunder or otherwise bar or preclude
City from declaring this Agreement terminated as a result of any
subsequent violation of any of the terms or conditions of this Agreement.
All of such remedies are expressly cumulative and the exercise of one or
more remedies shall not preclude the simultaneous or subsequent exercise
of different or additional remedies.
Developer Agreement Page 5 of 9
SECTION 8 Miscellaneous
8.01 This Agreement is performable in Lubbock County, Texas, and venue for
any action arising out of this Agreement shall be exclusively in Lubbock
County, Texas. This Agreement shall governed by and construed in
accordance with the laws of the State of Texas.
8.02 Any notice required by this Agreement shall be deemed to be properly
served, if (i) provided in person or by telephonic facsimile; or (ii)
deposited in the United States mail by certified letter, return receipt
requested, addressed to the recipient at recipient's address shown below,
subject to the right of either party to designate a different address by
notice given in the manner just described. Notice shall be deemed to be
received when delivered if provided in person or by telephonic facsimile
or, if deposited in the United States mail, as set forth above, (4) days after
depositing such notice in the United States mail, as set forth above.
For City:
Lee Ann Dumbauld, City Manager
City of Lubbock
P. O. Box 2000
Lubbock, Texas 79457
Facsimile No. 806-7752051
with copy to:
Marsha Reed, Chief Operating Officer
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Facsimile No. 806-775-3074
Developer Agreement Page 6 of 9
For Developer:
Marc Shipton
6306 Iola Avenue, Suite 200
Lubbock, TX 79424
8.03 In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, except as may otherwise be provided herein, such invalidity,
illegality or unenforceability shall not in any way affect any other
provision hereof and this Agreement shall be considered as if such invalid,
illegal or unenforceable provision had never been contained in this
Agreement.
8.04 City and Developer each bind themselves and their successors and assigns
to the other parties of this Agreement. Developer represents and warrants
to City that it (i) possesses the requisite power and authority to execute,
deliver and perform this Agreement; (ii) has taken all actions and
formalities necessary to authorize Developer to execute, deliver and
perform this Agreement; and (iii) the party executing for and on behalf of
Developer has been duly authorized to act in such behalf for Developer.
8.05 City and Developer herein recognize that the continuation of any
agreement at the close of any given fiscal year of the City of Lubbock,
Texas, which fiscal year ends on September 30 of each year, shall be
subject to Council budget approval of the City, providing for or covering
such agreement item as an expenditure therein. The City does not
Developer Agreement Page 7 of 9
represent that said budget item will actually be adopted as this
determination is within the sole discretion of the City Council.
8.06 The City reserves the right to exercise any right or remedy available to it
by law, contract, equity, or otherwise, including without limitation, the
right to seek any and all forms of relief in a court of competent
jurisdiction. Further, the City shall not be subject to any arbitration
process prior to exercising its unrestricted right to seek judicial remedy.
The remedies set forth herein are cumulative and not exclusive, and may
be exercised concurrently. To the extent of any conflict between this
provision and another provision in, or related to, this document, this
provision shall control.
The parties enter into this Agreement on the 29th day of November , 2012.
DEVELOPER: S&S Commercial Properti s, LTD
By: I-Mce'124
ARC SH P , PRESIDENT
CITY OF LUBBOCK
GLEN,ROBERSTON, MAYOR
Developer Agreement Page 8 of 9
ATTEST:
Rebec a Garza, City See ary
F.11 u 9 1100161011#42"
Marsha Reed
Chief Operating Officer
APPROVED AS TO FORM:
Chad Weaver
Assistant City Attorney
Developer Agreement Page 9 of 9