Loading...
HomeMy WebLinkAboutResolution - 2004-R0508 - Development Agreement Between Hubwest Development And Canyon Hub Holdings - 10_11_2004Resolution No. 2004-RO508 October 11, 2004 Item No. 42 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 ATTEST: Re cca Garza, City Secretary APPROV S TO CONTENT: Craig Farm r Director of Planning and Transportation APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney ke/ccdocs/PavingMilwaukee.Hubwest res October 6, 2004 M Resolution No. 2004-RO508 October 11, 2004 Item No. 42 STATE OF TEXAS § COUNTY OF LUBBOCK § DEVELOPMENT AGREEMENT for DESIGN and CONSTRUCTION of NMWAUKEE 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 Iimited 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 34'b Street to 92°d Street, as a project; and Milwaukee Paving Project Agreement Page 1 of 16 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, join 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 their 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 16 forth in Section 1.04, below, as provided in and subject to Section 1.06, below. 1.02 Owner 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 (a) The City has determined an estimate of the cost of Developer's share of the Milwaukee Project, said estimate being the sum of Three Hundred Ninety -Four Thousand Fifty -Three Dollars ($394,053) (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 the actual bid cost, as determined by the response to the City's request for bids awarded by the Milwaukee Paving Project Agreement Page 3 of 16 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 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 e.Xc a s f� as M 4WYZ CO2 f 1WJ OVA and Section 1.05, herein ,re� five per cent (5%) Amewit, 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 p us an additional fire percent (5110) 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. (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. Milwaukee Paving Project Agreement Page 4 of 16 AV 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. 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 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 Milwaukee Paving Project Agreement Page 5 of 16 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 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 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 Milwaukee Paving Project Agreement Page 6 of 16 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. (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 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. (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 set forth for payment by Developer to City or Escrow Agent as provided Milwaukee Paving Project Agreement Page 7 of 16 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 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 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 8 of 16 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 County, Texas. This Agreement shall governed and construed in accordance with the laws of the State of Texas. Milwaukee Paving Project Agreement Page 9 of 16 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 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 10 of 16 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 parties 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 have 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 Milwaukee Paving Project Agreement Page I I of 16 Developer and 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. Milwaukee Paving Project Agreement Page 12 of 16 The parties enter into this Agreement on the ATTEST: Rebecca Garza, City Secretary APPROVE AS TO CONTENT: Larry Hertd, City Engineer APPROVED AS TO FORM: and K. CasnerC%� First Assistant City Attorney IIth day of October, 2004. DEVELOPER: H ST VE[L(O�PM L.L.C. B _ How \ Naam. iarles dges Title: Manager Y• ��,�� B ( Name: Artemio de la Vega Title: Manager Milwaukee Paving Project Agreement Page 13 of 16 OWNER: CANYON HUB HOLDINGS, L.P. By:6—�' oa- oo a% /i • mil,, • 1.jAggpoV Milwaukee — Hodges 3B Agreement. With I M-04 chw%es.accptdP L October 6, 2004 October 7, 2004 October 8, 2004 Milwaukee Paving Project Agreement Page 14 of 16 WEST TEXAS & LUBBOCK RAILROAD H'ib WEST DEVE1 OPMENT. L.P, NORTH lPROPOSED EXTENSION OF MILWAUKEE AVENUE 34TH STREET TO 98TH STREET ift m N EXHI ff A PROPERTY ImIeR MAP HUB WEST DEVELOPMENT, L.P. NORTH U Resolution No. 2004-RO508 EXHIBIT "B" to Agreement CRY of L.abboCk AMwoukw Arataia Aft SbV0 kt M Sftd IM EXHU31T B - LANDOWNER PARTICIPATION Hub West D"*k nent, L.P. IJorth Tabu A / 2 AnoM ba"W ftic urrt : V,835 WNWf 552M t1A SLbbw t 432.S4t LMi 1a dMer911o! Wre" W4 000 f 38.491 [TOTAL s �a.oa3 Tate 6 Oft Sb*M WkIer ft hmrr fr4we to OweRRyr. AWWX Pa%*q PAN - S2n$V Milwaukee Paving Project Agreement Page 16 of 16