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HomeMy WebLinkAboutResolution - 2004-R0442 - Development Agreement For Design And Construction Of Milwaukee Ave. - 09/16/2004Resolution No. 2004-RO442 September 16, 2004 RESOLUTION Item No. 39A BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed, conditioned upon the execution and delivery of, on or before September 27, 2004, the Development Agreements to the City of Lubbock, in the same form as attached hereto, by (i) Christian City View Fellowship; and (ii) Hub West Development, L.P., covering the Milwaukee Avenue Paving Project, to execute for and on behalf of the City of Lubbock, a Development Agreement between the City of Lubbock and S & S Commercial Properties, LLC, for the design and construction of Milwaukee Avenue. Said Development Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 16th day of GAL, MAYOR ATTEST: Re ecca Garza, City Secretary APPROVED AS TO CONTENT: — A L� ' �] PL�& C kv y He4TR- Larry Hertel, City Engineer APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney ke/ccdocs/PavingMilwaukee.Contingent S & S res September 16, 2004 2004. Resolution No. 2004-RO442 September 16, 2004 Item No. 34A STATE OF TEXAS § COUNTY OF LUBBOCK § DEVELOPMENT AGREEMENT for DESIGN and CONSTRUCTION of MILWAUKEE AVENUE This Development Agreement ("Agreement") is entered by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"), and S & S Commercial Properties, LLC, a Texas limited liability company (the "Developer"). WITNESSETH: WHEREAS, Developer owns real property adjacent to Milwaukee Avenue, located within the corporate limits of the City; and WHEREAS, Developer is required, pursuant to Chapter 25 of the Code of Ordinances of the City, to participate in the paving of Milwaukee Avenue, and to bear the cost of such participation; and WHEREAS, the City, to realize cost savings due to economies of scale and due to drainage and infrastructure installation, such as stormwater, water, sewer, and other utility pipelines, desires to design and construct Milwaukee Avenue, from 34"' Street to 92nd Street, as a project; and WHEREAS, the Developer, due to the economic benefit it will enjoy from the construction of such improvements in the manner desired by the City, joins the City in such desire; and Milwaukee Paving Project Agreement Page 1 of 15 WHEREAS, the City and Developer now desire to enter into this Agreement wherein Developer unconditionally agrees to pay to City its allocated portion of the cost related to the design and paving of Milwaukee Avenue and the installation of the utility infrastructure, being drainage, water and sewer. NOW, THEREFORE, in consideration of the mutual covenants and obligations herein, the City and Developer agree as follows: SECTION 1. Developer Participation 1.01 Developer shall, on or before October 1, 2004, either (i) pay in cash the Estimated Amount, as defined in Section 1.03, below, regarding Developer's share of the Milwaukee Project (as defined below) to City, or (ii) submit an Irrevocable Letter of Credit, issued by a bank, as defined by Section 31.002 of the Texas Finance Code, that maintains its home office or branch banking location wherein said Irrevocable Letter of Credit may be presented for honor in Lubbock, Texas, in the amount of the Estimated Amount, as described in Section 1.03, payable conditioned upon presentment and no other conditions, containing at least a three (3) year effective term and otherwise suitable in form to the City, to secure its obligations under this Agreement, said funds to be used for the street paving, drainage, water and sewer construction of Milwaukee Avenue, as set forth in Section 1.03, below. The description of the project, as set forth herein, is depicted on Exhibit "A", attached hereto (the "Milwaukee Project"). The City, in the event Developer shall tender the cash payment as contemplated by this Section 1.01, shall place such funds in escrow, in Milwaukee Paving Project Agreement Page 2 of 15 the event an Escrow Account may be established on or before the time set forth in Section 1.04, below, as provided in and subject to Section 1.06, below. 1.02 Developer shall dedicate to City, on or before March 1, 2005, at no cost to the City, all lands and real property interests necessary, as determined by City, for the paving and drainage, water, sewer and street lighting construction of the Milwaukee Project. City shall provide to Developer a description of such lands necessary for the Milwaukee Project on or before February 1, 2005. 1.03 The City has determined an estimate of the cost of Developer's share of the Milwaukee Project, said estimate being the sum of Four Hundred Ninety -One Thousand Eight Hundred Thirty -Five Dollars ($491,835) (the "Estimated Amount"). The Estimated Amount includes fifty percent (50%) of the difference between (i) estimated paving costs, if concrete paving is utilized; and (ii) estimated paving costs, if asphalt paving is utilized. A schedule depicting the items of the Milwaukee Project and estimated costs thereof is attached hereto as Exhibit `B". Developer agrees and stipulates to City that the estimate is a reasonable cost for Developer's share of the Milwaukee Project cost. Further, Developer stipulates and agrees that the Estimated Amount is merely an estimate, and that the cost of Developer's share of the Milwaukee Project could be lesser or greater than the Estimated Amount. Developer, notwithstanding the Estimated Amount set forth herein, unconditionally agrees to pay to City Milwaukee Paving Project Agreement Page 3 of 15 the actual bid cost, as determined by the response to the City's request for bids awarded by the City Council of the City of Lubbock and excluding any additional costs associated with change orders to the public works contract, of the Milwaukee Project (the "Actual Bid Cost'). Notwithstanding the unconditional payment obligation of Developer to pay the Actual Bid Cost of the Milwaukee Project, in the event the Actual Bid Cost of the Milwaukee Project is, as set forth in Section 1.04 and Section 1.05, herein, greater than five per cent (5%) of the Estimated Amount, the City and Developer agree to negotiate in good faith the costs in excess of the Estimated Amount. In the event Developer and City cannot agree as to the costs to be paid by Developer for the Milwaukee Project, the City may, at its option, either (i) continue construction activities regarding the Milwaukee Project, in which event the Developer would be obligated to pay to the City or Escrow Agent, the sum of the Estimated Amount plus an additional five percent (5%) of the Estimated Amount; or (ii) abandon the Milwaukee Project, at which time any and all obligations of City and Developer as set forth herein shall terminate and shall be null and void. It is expressly agreed and understood that the City may or may not bid the Milwaukee Project as an asphalt paving project. If it is not bid, the P amount utilized for the Estimated Amount computation, as set forth in Table B, Column 3, on Exhibit `B", attached hereto, shall be utilized as the actual costs for such paving method. Milwaukee Paving Project Agreement Page 4 of 15 1.04 The City shall construct the Milwaukee Project in accordance with all applicable laws, and will competitively bid construction of the project where required by applicable law. Developer stipulates and agrees that the City may competitively bid areas of Milwaukee Avenue not located within the areas of the Milwaukee Project. After bids are received and the City staff determines the lowest responsible bidder to be recommended to the City Council for award, City shall notify Developer of the amount of such bid recommended for award (the "Notice of Intended Award"). No later than three (3) days after receipt of the Notice of Intended Award, or ten (10) days prior to the meeting of the City Council wherein the award of the bid is to be considered, whichever is the later to occur, the Developer shall pay to the City or Escrow Agent (as defined in Section 1.06, below) (i) in the event the Developer tendered cash, the difference between the Estimated Amount and the Actual Bid Cost, as described in Section 1.03, above, or (ii) in the event Developer tendered an Irrevocable Letter of Credit, the Actual Bid Cost of the Milwaukee Project, as described in Section 1.03, above. 1.05 In the event the City shall award a bid not recommended to the City Council, as contained within the Notice of Intended Award, and in the event the actual awarded bid is larger than the bid contained within the Notice of Intended Award, Developer shall, within three (3) days after the meeting of the City Council of the City wherein such bid is awarded, submit to the City or Escrow Agent the difference between (1) the amount Milwaukee Paving Project Agreement Page 5 of 15 deposited pursuant to the Notice of Intended Award; and (2) the Actual Bid Cost. Conversely, in the event the actual awarded bid requires a smaller sum than paid by Developer to City pursuant to the Notice of Intended Award, the City shall, within ten (10) days after the meeting of the City Council of the City wherein such bid is awarded, refund or cause the refund of the difference between (1) the amount deposited pursuant to the Notice of the Intended Award; and (2) the Actual Bid Cost. 1.06 In the event an Escrow Agreement may be entered into, as provided herein, any funds received by City from Developer for the Estimated Amount or Actual Bid Cost of the Milwaukee Project, as applicable, subject to the conditions below, shall be placed in an Escrow Account (herein so called) with a bank, as defined by Section 31.002 of the Texas Finance Code (the "Escrow Agent"), to be determined or selected by City in accordance with all applicable laws. The City, Developer and Escrow Agent shall negotiate in good faith to enter into an Escrow Agreement (herein so called) governing the deposit, maintenance and withdrawals of the Escrow Account, and providing (i) that the account bear interest at a rate acceptable to City and Developer; (ii) for fees for all services to be provided by the Escrow Agent or any other party related to the Escrow Account (the "Escrow Fee") acceptable to City and Developer; (iii) that the City may withdraw funds or cause the refund of funds from the Escrow Account conditioned solely upon the request by City for such funds and no other condition; (iv) that the Developer shall be solely Milwaukee Paving Project Agreement Page 6 of 15 responsible for the payment of the Escrow Fee; (v) that the interest earned on the Escrow Account shall be applied first to payment of the Escrow Fee and, if any funds are remaining, remitted to Developer; and (vi) any other terms or provisions required by the City, in its discretion, and otherwise be in form and substance satisfactory to City. Notwithstanding anything to the contrary herein, City may withdraw funds from the Escrow Account at times and in the amounts deemed necessary or advisable by the City related to the Milwaukee Project. No consents, documentations, representations or any other matter, other than the written request of City, by and through its City Manager or his/her delegee, shall be required for disbursement of the requested funds by Escrow Agent. After deposit into the Escrow Account, the Irrevocable Letter of Credit for the benefit of City, as described in Section 1.04, above, if provided in lieu of cash payment, may be released by City. In the event the Irrevocable Letter of Credit shall be dishonored, for any reason, Developer shall tender to City or Escrow Agent on or before the ten (10) days after being given notice of such dishonor, all funds due under this Agreement. It is expressly agreed and understood that entering into an Escrow Agreement requires contractual commitment from parties not subject to this Agreement. Developer and City agree to negotiate in good faith in attempting to enter into an Escrow Agreement as described above. However, in the event a final written Escrow Agreement may not be entered into by Developer, City and Escrow Agent on or before the date Milwaukee Paving Project Agreement Page 7 of 15 set forth for payment by Developer to City or Escrow Agent as provided in Section 1.04, above, Developer shall deposit such funds directly to the City and any term or provision herein allowing payment to City or Escrow Agent shall be deemed amended to provide for payment solely to City. The City shall pay no interest on such funds. 1.07 After award of the bid, City shall, subject to the terms of Section 6.01, below, proceed in a reasonable manner to substantial completion of the Milwaukee Project. SECTION 2. Term 2.01 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 3. Indemnity 3.01 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 4. Events of Default / Remedies 4.01 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 provided for herein is not true or correct. The non - Milwaukee Paving Project Agreement Page 8 of 15 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. 4.02 If a default shall occur and be continuing, after ten (10) days written notice to cure such default, (i) in the event of a continuing default by City, Developer may pursue any and all remedies it may be entitled to, at law, contract, or equity, excepting termination and rescission; or (ii) in the event of a continuing default by Developer, City may, at its option, terminate this Agreement and pursue any and all remedies it may be entitled to at law, contract or equity. 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 5. Miscellaneous 5.01 This Agreement is performable in Lubbock County, Texas, and venue for any action arising out of this Agreement shall be exclusively in Lubbock Milwaukee Paving Project Agreement Page 9 of 15 County, Texas. This Agreement shall governed and construed in accordance with the laws of the State of Texas. 5.02 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: Lou Fox, City Manager City of Lubbock P. O. Box 2000 Lubbock, Texas 79457 Facsimile No. 806-775-2051 with copy to: Larry Hertel, City Engineer City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Facsimile No. 806-775-3074 W41 Richard Casner, First Assistant City Attorney City of Lubbock P. O. Box 2000 Lubbock, Texas 79457 Facsimile No. 806-775-3307 Milwaukee Paving Project Agreement Page 10 of 15 For Developer: S & S Commercial Properties, LLC Attn: Marc Shipton, President P. O. Box 64189 Lubbock, Texas 79464 Facsimile No. 806-794-1559 5.03 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, 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. 5.04 City and Developer each bind themselves and their successors and assigns to the other party 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. Developer may assign its obligations under this Agreement, provided however, that Developer shall not be released from liability for performance of any obligation to City contained in this Agreement and will be held as a surety for the performance of this Agreement by any subsequent assignee. Milwaukee Paving Project Agreement Page 11 of 15 5.05 City, pursuant to Resolution Number 4475, as amended by Resolution Number 2003-R0352, adopted a paving policy (the "Policy") wherein the financial obligations of the paving of streets within the City of Lubbock were apportioned between City and developers. The apportionment of the financial obligations of the paving of the Milwaukee Project, as prescribed by this Agreement, differs in certain respects from that set forth in the Policy. Accordingly, to the extent the Policy conflicts with this Agreement, the terms of this Agreement shall control and the Policy shall be considered to be amended by this Agreement, insofar and only insofar, as the Policy affects the Milwaukee Project. SECTION 6. Non -Appropriation 6.01 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. Milwaukee Paving Project Agreement Page 12 of 15 The parties enter into this Agreement on the 16th day of September, 2004. CITY OF LUBBOCK ATTEST: �- J� Mecca Garza, City Secretary `� APPROVED AS TO CONTENT: Larry He el, City Engineer APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney S & S COMMERCIAL PROPERTEE S, LLQJ By'`l� Marc Ship n, President ATTEST: • �. �� t.. Richard/Milwaukee Ave paving Project.S&SCommercialProperties Agreement September 8, 2004 Milwaukee Paving Project Agreement Page 13 of 15 5 Resolution No. 2004-RO442 N — CMS PLANNED v DEVE t?PM,ENT \ t 1 4 i ter... ,.... .... BOOM t ,l Gef�' FUTURE `PLANNEV UNELCIPMENT US S and S Commercial PROPOSED EXTENSION OF MILWAUKEE AVENUE 34TH STREET TO 98TH STREET EX111Bfi A PROPERTY OWNER MAP CUB PROPERTIES Resolution No. 2004-RO442 City of Lubbock Milwaukee Avenue 34th Street to 98th Street EXHIBIT B - LANDOWNER PARTICIPATION CMS Properties S and S Commercial Properties, LLC Table A 2 Item Amount Prepaid Paving $ 407,802 Drainage Structures $ 48,288 Water ,t48 Sewer ,775 Subtotal t$53 ,013 Less 1/2 difference between concrete and asphalt ,178 TOTAL Jr 491,835 Table B Property Owner Concrete 'Asphalt Difference 1f2 $401SY $271SY Difference CMS Properties - - ------ �-- -_.._. _._ ...._.___........ ...... .............. .avv«v.w rv, vVonIVO �JilN 10 98th Street Widening from Indiana to University: Asphalt paving price = $27/SY A-Vrgeclsx2000878.o4%CIVIL'EOPMOPC-Comm Iimi.)ds Milwaukee Paving Project Agreement Page IS of 15 CMS