HomeMy WebLinkAboutResolution - 2023-R0321 - Dev. Agreement Contract 17207, Red Canyon Dev. LLC 6.27.23Resolution No. 2023-RO321
Item No. 6.10
June 27, 2023
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
and on behalf of the City of Lubbock, the Development Agreement Contract No. 17207 for
construction of drainage improvements, by and between the City of Lubbock and Red Can
Development, LLC, of Lubbock, Texas and related documents. Said Agreement is attac
hereto and incorporated in this resolution as if fully set forth herein and shall be included in
minutes of the City Council.
Passed by the City Council on
ATTEST:
C ney Paz, City S etary
APPROVED AS TO CONTENT:
Eri ej' , A lstgt i er
APPROVED AS TO FORM:
June 27, 2023
I &
elli Leisure, Senior Assistant City Attorney
ccdocs/RES.development agreement --- Gates drainage
6.8.23
Resolution No. 2023-RO321
STATE OF TEXAS §
COUNTY OF LUBBOCK §
DEVELOPMENT AGREEMENT
FOR CONSTRUCTION OF
DRAINAGE IMPROVEMENTS — THE GATES DEVELOPMENT
This Development Agreement ("Agreement") No. 17207 is entered into this 27
day of June , 2023, by and between the City of Lubbock, Texas, a Texas
home rule municipal corporation (the "City") and, Red Canyon Development, LLC, (the
"Developer").
WITNESSETIL
WHEREAS, Developer is the developer of certain real property adjacent to
Memphis Avenue, the Gates development, 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 Gates development 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 Developer's Gates development and are depicted on
Exhibit "A" attached hereto and incorporated herein;
WHEREAS, the City desires that such Drainage Improvements be made;
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
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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, 2023. 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.
SECTION 2 City 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 2021 total Contract Price regarding this project was
estimated to be four hundred one thousand nine hundred forty and 35/100 Dollars
($401,940.35). Further the Developer warrants that the current pricing for the
Drainage Improvements has increased since the 2021 cost estimates performed,
and the Developer shall pay for, and agrees to pay for, all said costs above and
beyond the City's contributed as stated herein.
2.02 The City shall pay to Developer the actual bid price amount, as limited herein not
to exceed the lesser of $120,582.10 or thirty percent (30%) of the Contract Price
upon completion of the Drainage Improvements herein, and inspection and
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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 the
lesser of $120,582.10 or 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 the lesser of
$120,582.10 or 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 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 Safe
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.
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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 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 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
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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: mkeenumna mylubbock.us
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
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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 provision shall control.
8.07 Contracts with Companies Engaged in Business with Iran, Sudan, or Foreign
Terrorist Organization Prohibited. Pursuant to Section 2252.152 of the Texas
Government Code, prohibits the City from entering into a contract with a vendor
that is identified by The Comptroller as a company known to have contracts with
or provide supplies or service with Iran, Sudan or a foreign terrorist organization
8.08 No Boycott of Israel. Pursuant to Section 2271.002 of the Texas Government
Code, a) This section applies only to a contract that: (1) is between a
governmental entity and a company with 10 or more full-time employees; and (2)
has a value of $100,000 or more that is to be paid wholly or partly from public
funds of the governmental entity. (b) A governmental entity may not enter into a
contract with a company for goods or services unless the contract contains a
written verification from the company that it: (1) does not boycott Israel; and (2)
will not boycott Israel during the term of the contract.
8.09 Texas Government Code 2274. By entering into this Agreement, Contractor
verifies that: (1) it does not, and will not for the duration of the contract, have a
practice, policy, guidance, or directive that discriminates against a firearm
entity or firearm trade association or (2) the verification required by Section
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2274.002 of the Texas Government Code does not apply to the contract. If
Contractor is a company with 10 or more full-time employees and if this
Agreement has a value of at least $100,000 or more, Contractor verifies that,
pursuant to Texas Government Code Chapter 2274, it does not have a practice,
policy, guidance, or directive that discriminates against a firearm entity or firearm
trade association; and will not discriminate during the term of the contract against
a firearm entity or firearm trade association.
8.10 Contractor represents and warrants that: (1) it does not, and will not for the
duration of the contract, boycott energy companies or (2) the verification required
by Section 2274.002 of the Texas Government Code does not apply to the
contract. If Contractor is a company with 10 or more full-time employees and if
this Agreement has a value of at least $100,000 or more, Contractor verifies that,
pursuant to Texas Government Code Chapter 2274, it does not boycott energy
companies; and will not boycott energy companies during the term of the
Agreement. This verification is not required for an agreement where a
governmental entity determines that these requirements are inconsistent with the
governmental entity's constitutional or statutory duties related to the issuance,
incurrence, or management of debt obligations or the deposit, custody,
management, borrowing, or investment of funds.
8.11 Texas Public Information Act. The requirements of Subchapter J, Chapter 552,
Government Code, may apply to this contract and the contractor or vendor agrees
that the contract can be terminated if the contractor or vendor knowingly or
intentionally fails to comply with a requirement of that subchapter.
To the extent Subchapter J, Chapter 552, Government Code applies to this
agreement, Contractor agrees to: (1) preserve all contracting information related
to the contract as provided by the records retention requirements applicable to the
governmental body for the duration of the contract; (2) promptly provide to the
governmental body any contracting information related to the contract that is in
the custody or possession of the entity on request of the governmental body; and
(3) on completion of the contract, either: (A) provide at no cost to the
governmental body all contracting information related to the contract that is in the
custody or possession of the entity; or (B) preserve the contracting information
related to the contract as provided by the records retention requirements
applicable to the governmental body.
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The parties enter into this Agreement on the 27 day of June , 2023.
CITY OF LUBBOCK:
I:1
A EST:
Courtney Paz, City Sec tary
APPROVED AS TO CONTENT:
DEVELOPMENT,
MANAGER
Michael G. Keenum, P.E., Division Director of Engineering/City Engineer
APPROVED AS TO FORM:
v/// . y - -
elli Leisure, Senior Assistant City Attorney
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