HomeMy WebLinkAboutResolution - 2018-R0184 - Quaker/146 Investment Holdings - 06/14/2018Resolution No. 2018-R0184
Item No. 6.1.1
June 14, 2018
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, the Development Agreement for the paving of Quaker
Avenue from 130th Street to 146th Street, by and between the City of Lubbock and Quaker/146
Investment Holdings, LP, a Texas limited partnership of Dallas, Texas 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 �aa�, �ar�n Q June 14, 2018
DANIEL M. POPE, MAYOR
ATTEST:
Rebe ca Garza, City Secret ry
APPROVED AS TO CONTENT:
Michael Keenum, P.E., CFM
Division Director of Engineering/City Engineer
APPROVED AS TO FORM:
elli Leisure, Assistant City Attorney
ccdocs/RES. DeveloperAgrmt_Quaker
4.26.18
Resolution No. 2018-RO 184
STATE OF TEXAS
COUNTY OF LUBBOCK §
DEVELOPMENT AGREEMENT
FOR CONSTRUCTION OF
A PORTION OF QUAKER AVENUE
This Development Agreement ("Agreement") is entered into this 14th day of
Tune , 2018, by and between the City of Lubbock, Texas, a Texas home rule
municipal corporation (the "City") and Quaker/146 Investment Holdings, LP, a Texas limited
partnership (the "Developer")
WITNESSETH:
WHEREAS, Developer is the land developer of certain real property adjacent to Quaker
Avenue, located within the corporate limits of the City;
WHEREAS, Developer is required, pursuant to Chapter 38 of the Code of Ordinances
of the City, to participate in the paving of Quaker Avenue from 1301h Street to 146`h Street, and
to bear the cost of such participation;
WHEREAS, a portion of Quaker Avenue is related to the Developer's development and
is unpaved (the "Unpaved Portion"), said Unpaved Portion of Quaker Avenue being depicted
on Exhibit "A", attached hereto, and is not the responsibility of Developer to participate in such
paving;
WHEREAS, the Unpaved Portion is less than thirty percent (30%) of the Contract Price
that the Developer will enter into related to the Quaker Paving project;
WHEREAS, the City desires that such Unpaved Portion now be paved and be made;
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WHEREAS, the City, to realize cost savings due to economies of scale, now desires that
Developer perform such paving of the Unpaved Portion of Quaker Avenue and that the City
reimburse Developer of such costs; and
WHEREAS, the City and Developer now desire to enter into this Agreement wherein
City agrees to pay Developer a portion (not to exceed $336,647.14) of the costs related to the
paving of the Unpaved Portion of Quaker Avenue.
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 Quaker Avenue 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 April 30, 2019. Completion of the
Unpaved Portion of Quaker Avenue shall not be deemed to have occurred unless
and until the City shall have 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.
SECTION 2 City Participation
2.01 The City shall, subject to the terms hereof, participate in the Unpaved Portion of
Quaker Avenue to an amount not to exceed, three hundred thirty-six thousand six
hundred forty-seven and 14/100 Dollars ($336,647.14), based on the actual bid
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prices of the Unpaved Portion of Quaker Avenue. It is expressly hereby
represented and warranted by Developer to City that the total Contract Price
regarding this project is estimated to be one million one hundred seventy-nine
thousand seven hundred and 00/100 Dollars ($1,179,700.00).
2.02 The City shall pay to Developer the actual bid price amount, as limited herein
not to exceed $336,647.14 upon completion of the Unpaved Portion of Quaker
Avenue 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 Quaker Avenue 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 Quaker Avenue 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
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City of Lubbock on or before beginning any work on the Unpaved Portion and
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 Paving
associated with Quaker Avenue shall be available for inspection by the City at
the offices of Developer at 6310 Lemmon Avenue, Suite 200, Dallas, Texas,
75209 upon and during business hours thereof. Developer shall furnish actual
contract documentation to the City that depicts the actual costs of paving of
Quaker Avenue 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 Indemni
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 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
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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.
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
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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:
City Manager
City of Lubbock
P. O. Box 2000 Lubbock,
Texas 79457
Facsimile No. 806-775-2051
with copy to:
Division Director of
Engineering/City Engineer
City of Lubbock
P.O. Box 2000 Lubbock,
Texas 79457
Facsimile No. 806-775-3074
For Developer:
Quaker/146 Investment Holdings, LP
Attn: Robert E. Myers
6310 Lemmon Avenue
Suite 200
Dallas, Texas 75209
Email: rm ers ,myersfmancialcorp.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
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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.
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
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provision shall control.
14th June
The parties enter into this Agreement on the 24 h day of , 2018.
DEVELOPER:
Quaker/146 Investment Holdings, LP, a Texas
limited part rship
By:
R. J. Pipes, Manager
CITY OF LUBBOCK:
DANIEL M. POPE, MAYOR
ATTEST:
&-—
Rebec r
arza, City Secretar
APPROVED AS TO CONTENT:
Michael Keenum, P.E., CFM
Division Director of Engineering/City Engineer
a04:� IN
Turpin, P.E.,
Assistant City Engine Capital Projects and Design
APPROVED AS TO FORM:
04 -
K lli Leisure, Assistant City Attorney
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LEGEND:
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