HomeMy WebLinkAboutResolution - 2004-R0507 - Development Agreement For The Design And Construction Of Milwaukee Ave. - 10_11_2004Resolution No. 2004-RO507
October 11, 2004
Item No. 41
RESOLUTION
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 to execute for and on behalf of the City of Lubbock, a Development Agreement
between the City of Lubbock and Hubwest Development, L.L.C. and Canyon Hub
Holdings, L.P., 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 11th day of October 2004.
ATTEST:
Re cca Garza, City Secretary
APPROV AS TO CONTENT:
Craig FAmer
Director of Planning and Transportation
APPROVED AS TO FORM:
Richard K. Casner
First Assistant City Attorney
ke/ccdocs/PavingMilwaukee.Hodges3b res
October 6, 2004
Resolution No. 2004-RO507
October 11, 2004
Item No. 41
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"), Hubwest
Development, L.L.C., a Texas limited liability company (the "Developer"), and Canyon
Hub Holdings, L.P., a Texas limited partnership ("Owner").
WITNESSETH:
WHEREAS, Developer is the developer of certain real property adjacent to
Milwaukee Avenue, located within the corporate limits of the City owned by Canyon
Hub Holdings, L.P., a Texas limited partnership; and
WHEREAS, Developer and Owner are 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 34t" Street to
92nd Street, as a single project; and
Milwaukee Paving Project Agreement Page 1 of21
WHEREAS, the Developer and Owner, due to the economic benefit they will
enjoy from the construction of such improvements in the manner desired by the City,
joins the City in such desire; and
WHEREAS, the City, Developer and Owner now desire to enter into this
Agreement wherein Developer and Owner, as applicable, unconditionally agree 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, Developer and Owner agree as follows:
SECTION 1. Developer Participation
1.01 Developer shall, on or before October 15, 2004, submit an Irrevocable
Letter of Credit, issued by American Bank of Texas, a bank, as defined by
Section 31.002 of the Texas Finance Code, 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 one (1) 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
the event an Escrow Account may be established on or before the time set
Milwaukee Paving Project Agreement Page 2 of 21
forth in Section 1.04, below, as provided in and subject to Section 1.06,
below.
1.02 The City shall prepare schematic drawings of the proposed Milwaukee
Project, showing both horizontal and vertical dimensions, which shall be
submitted to Developer for his review and comment no later than
November 1, 2004 (the "Preliminary Drawings"). City shall provide to
Developer a metes and bounds legal description of such lands necessary
for the Milwaukee Project on or before February 1, 2005, based upon the
Preliminary Drawings. Owner shall dedicate to City, on or before March
1, 2005, at no cost to. the City, all lands and real property interests so
described, for the paving and drainage, water, sewer and street lighting
construction of the Milwaukee Project. The total dedication for the
roadway shall not exceed one hundred ten feet (110') in width, with the
exception of additional width at the intersections for right -turn lanes or
corner clips.
1.03 (a) The City has determined an estimate of the cost of Developer's share
of the Milwaukee Project, said estimate being the sum of Seven Hundred
One Thousand Forty Dollars ($701,040) (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
Milwaukee Paving Project Agreement Page 3 of 21
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, but
subject to the limitations in subsection (b), agrees to pay to City 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").
(b) Notwithstanding the 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, exceeds the Estimated Amount by more than five per cent
(5%), 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
Milwaukee Paving Project Agreement Page 4 of21
of City and Developer as set forth herein shall terminate and shall be null
and void.
(c) 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
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.
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 Escrow Agent (as defined in Section 1.06, below) the
Actual Bid Cost of the Milwaukee Project, as described in Section 1.03,
above, subject to the limitations in subsection 1.03.
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
Milwaukee Paving Project Agreement Page 5 of21
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
deposited pursuant to the Notice of Intended Award; and (2) the Actual
Bid Cost, subject to the limitations in subsection 1.03. 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 (a) When the Escrow Agreement is 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
Milwaukee Paving Project Agreement Page 6 of 21
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) if, in accordance with Section 1.08,
Developer assumes the responsibility for and contracts for any incomplete
engineering, prior to award of construction bid and assumes the
responsibility for and contracts for the construction of the portion of
Milwaukee identified in Exhibit "A", attached hereto (and called the
Milwaukee Project herein), City shall make partial withdrawals from the
Escrow Account to reimburse Developer for progress payments to the
Contractor. However, in no case shall the withdrawals exceed the sum of
moneys paid or to be paid to the engineers and contractor for the
completion of the Milwaukee Project, and is subject to City acceptance of
the improvements related to the Milwaukee Project. (v) that the Developer
shall be solely responsible for the payment of the Escrow Fee; (vi) 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,
together with all such remaining funds, if such funds exist after
completion and acceptance of the Milwaukee project; and (vii) any other
terms or provisions required by the City, in its discretion, and otherwise be
in form and substance satisfactory to City.
Milwaukee Paving Project Agreement Page 7 of 21
(b) 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 to pay the actual costs associated with
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, a copy of which shall be provided to
Developer when submitted, 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, shall 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.
(c) 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
Developer is to deposit the funds to Escrow Agent, as set forth is 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
Milwaukee Paving Project Agreement Page 8 of 2l
shall be deemed amended to provide for payment solely to City. The City
shall pay no interest on such funds held by it.
1.07 The City shall proceed in a reasonably diligent manner to substantial
completion of the Milwaukee Project, subject to Section 6.01, according to
the following milestones: The Milwaukee Project shall be put out for bid
no later than April 1, 2005 (the "Bid Date"); the bid shall be awarded by
the City no later than May 1, 2005 (the "Award Date"); construction of the
Milwaukee Project shall be 50% complete, as reasonably determined by
the City, no later than December 1, 2005 ("Interim Completion Date"),
and the Milwaukee Project shall be substantially complete to the point
wherein (a) the subject portion of Milwaukee Avenue (as described in
Exhibit "A" and referred to in this Agreement as the "Milwaukee Project")
is open for the travel of traffic; and (b) the intersection of Milwaukee
Avenue and the Brownfield Highway and the traffic signals controlling the
travel of traffic at such intersection is operational, on or before March 1,
2006 ("Substantial Completion Date") (the Bid; Date, Award Date, Interim
Completion Date and Substantial Completion Date, are collectively
referred to herein as the "Milestones"). The Interim Completion Date and
the Substantial Completion Date shall be extended by weather and other
force majeure events as provided in the Paving Contract, as defined below.
The failure to reach such Milestones shall not be considered, for any
purpose, as an event of default hereunder and shall only entitle Developer
(i) in the event the Bid Date and Award Date Milestones are not met, as
Milwaukee Paving Project Agreement Page 9 of 21
the sole and exclusive course of action upon such events, to elect to
complete the Milwaukee Project, as contemplated by Section 1.08(c),
below; and (ii) in the event of that the Substantial Completion Date
Milestone is not met, as the sole and exclusive course of action upon such
event, Developer may exercise the rights provided in Section 1.08(b),
subject to the terms of Section 1.08(b)
1.08 (a) It is expressly agreed and understood that the City will require, in
the paving contract for the Milwaukee Project (the "Paving Contract'),
that the contractor who is awarded the bid (the "Paving Contractor")
agrees to meet both the Interim Completion Date and the Substantial
Completion Date, and the City further agrees to enforce such deadlines
against the Paving Contractor by all appropriate action, as reasonably
determined by the City, including, where deemed necessary or advisable
by the City, issuing notice of default to the Paving Contractor and its
bonding company, and if reasonably deemed necessary or advisable by
the City, by enforcing the default provisions and remedies under the
Paving Contract and the performance bond, and by taking such other
action as is deemed by the City to be reasonably necessary to ensure that
the Milwaukee Project is diligently prosecuted to completion.
(b) Additionally, the City will contractually provide for liquidated
damages in the Paving Contract from the contractor under the Paving
Contract as liquidated damages for the failure to timely meet the
Substantial Completion Date, in the amount of $10,000 per day until the
Milwaukee Paving Project Agreement Page 10 of 2l
Milwaukee Project (i.e., as described in Exhibit "A") is substantially
complete. The City agrees to pay Developer liquidated damages, only if,
as and when such liquidated damages are actually collected or offset by
the City from the Paving Contractor, either by agreement between City
and Paving Contractor, by acquiescence of Paving Contractor after notice
by City of its intent to offset final payment by the liquidated damages due
and owing City by Paving Contractor, or by full and final judgment, under
the terms of the Paving Contract for the failure of the Paving Contractor to
meet the Substantial Completion Date for the Milwaukee Project, and only
for the Milwaukee Project. In no event shall Developer or any other third
party be entitled to any funds not actually received, as described above, by
City as liquidated damages under the Paving Contract, for the failure of
the Paving Contractor to meet the Substantial Completion Date for the
Milwaukee Project, and only for the Milwaukee Project. However, in the
event the City deems, in its judgment, that liquidated damages are due and
owing for the Milwaukee Project under the Paving Contract, as described
above, the City will diligently pursue the recovery of such liquidated
damages.
(c) In the event that the City fails to meet the Bid Date or Award Date
Milestones specified herein, Developer may, at its option, upon thirty (30)
days written notice to the City, complete the Milwaukee Project with its
own funds, in part as secured by the Irrevocable Letter of Credit, as
described in Section 1.01, and/or escrow funds, as provided in Section
Milwaukee Paving Project Agreement Page l t of 21
1.06, if funds have been deposited by Developer, and the City shall pay to
Developer the lesser of $1,232,000 or 30% of the total contract price of
the Milwaukee Project and related public improvements projects as
contemplated by Subchapter C of Chapter 212 of the Texas Local
Government Code upon completion of the Milwaukee Project and such
other public improvement projects.
All construction activities undertaken by Developer related to the
Milwaukee Project and such related public improvement projects included
within the total contract price referred to above, shall be subject to the
prior approval of the City Engineer and in accordance with the
specifications of the remainder of the construction of Milwaukee Avenue
from 30 Street to 92nd Street.
In the event Developer shall undertake, in whole or in part, any
engineering or construction activities as set forth in Sections 1.08(c),
either through itself or its contractors, Developer shall procure and carry
the identical insurance coverage as required to be procured and carried by
the City's contractors (as set forth in the invitation to bid such project), and
otherwise comply with each provision of such contractual arrangements
related to such insurance requirements, related to the City's engineering
and construction of Milwaukee Avenue.
In the event Developer shall undertake, in whole or in part, any
engineering or construction activities as set forth in Section 1.08(c),
Developer shall execute a performance bond for the construction of the
Milwaukee Paving Project Agreement Page 12 of 21
Milwaukee Project and all other public improvements contemplated herein
(in accordance with Chapter 2253 of the Texas Government Code) and
comply with all other applicable laws related to private performance of
public improvements, including without limitation, Subchapter C of
Chapter 212 of the Local Government Code.
SECTION 2. Ten
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. Indemr&
3.01 Developer and Owner agree 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 or Owner's breach
of any of the terms or provisions of this Agreementor resulting from or
related to Developer's or Owner's contractors', agents', employees'
invitees', or licensees' activities under 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 -
defaulting party shall notify the defaulting party in writing upon becoming
Milwaukee Paving Project Agreement Page 13 of21
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/or 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 >. 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
County, Texas. This Agreement shall governed and construed in
accordance with the laws of the State of Texas.
Milwaukee Paving Project Agreement Page 14 of 21
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:
Lang Hertel, City Engineer
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Facsimile No. 806-775-3074
and:
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 15 of 21
For Developer:
Hubwest Development, L.L.C.
Attn: Charles Hodges
13642 Omega
Dallas, Texas 75244-4514
Facsimile No. (972) 960-1129
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, Developer and Owner each bind themselves and their successors and
assigns to the other party of this Agreement. Developer and Owner
represent and warrant to City that they (i) possess the requisite power and
authority to execute, deliver and perform this Agreement; (ii) have taken
all actions and formalities necessary to authorize Developer and Owner to
execute, deliver and perform this Agreement; and (iii) the party executing
for and on behalf of Developer and Owner has been duly authorized to act
in such behalf for Developer and Owner. Owner represents and warrants
to City that Developer is the duly authorized agent of Owner and is duly
and fully authorized by Owner to conduct any and all activities related to
the development of the Milwaukee Project on behalf of the Owner, as
contemplated by this Agreement. Developer and Owner may assign their
obligations under this Agreement, provided however, that Developer and
Milwaukee Paving Project Agreement Page 16 of 21
Owner 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.
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, Developer and Owner 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.
The parties enter into this Agreement on the 11th day of October, 2004.
Milwaukee Paving Project Agreement Page 17 of 21
ATTEST:
Re ca Garza, City Secretary
APPRO AS TO CONTENT:
C,,I'4Lan"yHerteIoet'i'ty Engineer
APPROVED AS TO FORM:
Richard K. Casner
First Assistant City Attorney
CITY OF LUBBOCK
DEVELOPER:
DEVELO
NaiW. Charles
Title: Manager
Name: Artemio de la Vega
Title: Manager
MAYOR
Milwaukee Paving Project Agreement Page 19 of 21
OWNER:
CANYON HUB HOLDINGS, L.P.
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