HomeMy WebLinkAboutResolution - 2021-R0116 - Contract 15823 with Red Canyon Development 4.13.2021Resolution No. 2021-R0116
Item No. 7.14
April 13, 2021
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 construction of
drainage improvements, by and between the City of Lubbock and Red Canyon Development,
LLC, 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 April 13, 2021
DANIEL M. POPE. MAYOR
ATTEST:
AbeeaGarza, City Sect tar
APPROVED AS TO CONTENT:
QA6�2 -")
Jesica Mc achern, Assistant City Manager
APPROVED AS TO FORM:
K 11� e, Assistant Attorney
Y
ccdocs/RES.Agrmt- Construction of drainage improvements
March 9, 2021
Resolution No. 2021-R0116
STATE OF TEXAS §
COUNTY OF LUBBOCK §
DEVELOPMENT AGREEMENT
FOR CONSTRUCTION OF
DRAINAGE IMPROVEMENTS
This Development Agreement ("Agreement") is entered into this 13th day of
April , 2021, by and between the City of Lubbock, Texas, a Texas home rule
municipal corporation (the "City") and, Red Canyon Development, LLC, (the
"Developer").
WITNESSETH:
WHEREAS, Developer is the developer of certain real property adjacent to
Memphis Avenue, Tracts A-D and F, The Gates (the "Project"), located within the
corporate limits of the City;
WHEREAS, Developer shall build drainage improvements related to the flow of
public surface water from Memphis Avenue and over and into the Playa Lake located to
the east of the Project in order to manage the flow of surface water to avoid surface
flooding;
)WHEREAS, those certain Drainage Improvements (the "Drainage
Improvements") are related to the Project and are depicted on Exhibit "B" attached hereto
and incorporated herein;
WHEREAS, the City desires that such Drainage Improvements be made;
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WHEREAS, the City, to realize cost savings due to the Developers participation
in, and installation of, the Drainage Improvements, now desires that Developer perform
such Drainage Improvements, and that the City participate in costs for said
improvements; and
WHEREAS, in compliance with the Texas Local Government Code Chapter 212,
the City and Developer now desire to enter into this Agreement wherein City agrees to
participate in the cost of the Drainage Improvements in a level not to exceed 30 percent
(30%) of the total contract price.
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 complete the Drainage
Improvements in accordance with all applicable laws, City of Lubbock Code of
Ordinances, and City of Lubbock policies. Completion of such improvements
shall occur on or before December 31, 2021. Completion of the Drainage
Improvements herein shall not be deemed to have occurred unless and until the
City has accepted such improvements 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.
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SECTION 2 Cily Participation
2.01 The City shall, subject to the terms hereof, participate in the Drainage
Improvements in an amount not to exceed, one hundred twenty thousand five
hundred eighty-two and 10/100 Dollars ($120,582.10), based on the Opinion of
Probable Cost Estimate of the Drainage Improvements, attached hereto as Exhibit
A and incorporated herein. It is expressly hereby represented and warranted by
Developer to City that the total Contract Price regarding this project is estimated
to be four hundred one thousand nine hundred forty and and 35/100 Dollars
($401,940.35).
2.02 The City shall pay to Developer the actual bid price amount, as limited herein not
to exceed $120,582.10 upon completion of the Drainage Improvements herein,
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 Drainage
Improvements herein are 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 as required 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.
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SECTION 3 Performance Bond
3.01 Developer shall execute a Performance Bond and/or furnish a Letter of Credit to
the City for the construction of the Drainage Improvements herein to insure
completion of the project. The bond must be executed by a corporate surety in
accordance with Chapter 2253, Government Code, State of Texas. The bond shall
be submitted to the City Engineer of the City of Lubbock on or before beginning
any work on the Drainage Improvements. 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 Drainage
Improvements project shall be available for inspection by the City.
4.02 Developer shall furnish actual contract documentation to the City that depicts the
actual costs of construction of the Drainage Improvements 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
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recovery of damages is sought that may arise out of, be 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.
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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 be 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:
Jarrett Atkinson, City Manager
City of Lubbock
P. O. Box 2000
Lubbock, Texas 79457
Email: jatkinson(d�mylubbock.us
with copy to:
Michael G. Keenum, P.E., CFM
Division Director of Engineering/City Engineer
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Email: mkeenum(a,mylubbock.us
Page 6 of 9
For Developer:
Thomas K. Payne
Red Canyon Development, LLC
P.O. Box 64664
Lubbock, TX 79464
Email: tpayn3@gmail.com
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 represent that said budget item will actually be adopted as this
determination is within the sole discretion of the City Council.
Page 7 of 9
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 13th day of April 12021
CITY OF LUBBOCK:
DANIEL M. POPE, MAYOR
ATTEST:
eb cca Garza, City Secr t
APPROVED AS TO CONTENT:
RED CANYON
DEVELOPMEMLC:
Michael G. Keenurn4t=visionDirector of Engineering/City Engineer
Page 8 of 9
c
Jesica McEachem, Assistant City Manager
APPROVED AS TO FORM:
m I KOWL�' -
K Ili Leisure, Assistant City Attorney
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