HomeMy WebLinkAboutResolution - 2024-R0072 - Contract 17773, Dev. Agmt, Elm Meadows Addition, LLC, Cedar Ave At East 80Th St - 02/13/2024Resolution No. 2024-R0072
Item No. 5.18
February 13, 2024
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 fo
and on behalf of the City of Lubbock, the Development Agreement Contract No. 17773 for th�
construction of roadway improvements on Cedar Avenue, by and between the City of Lubboc]
and Elm meadows Addition, LLC and related documents. Said Agreement is attached hereto ans
incorporated in this resolution as if fully set forth herein and shall be included in the minutes o
the City Council.
Passed by the City Council on Februar; 13, 2024
ATTEST:
Paz, City'Secretary
APPROVED AS TO CONTENT:
� .M, �a�
Erik ino, Assistant '' Manager
APPROVED AS TO PORM:
•
elli Leisure, Senior Assistant City Attorney
ccdocslRES.development agreement — Elm Meadows
130.24
Resolution No. 2024-R0072
STATE OF TEXAS
COUNTY OF LUBBOCK §
DEVELOPMENT AGREEMENT
FOR CONSTRUCTION OF
ROADWAY IMPROVEMENTS — ELM MEADOWS
This Development Agreement ("Agreement") No. 17773 is entered into this 13th
day of February, 2024. �'Sg�}, by and between the City of Lubbock, Texas, a Texas home
rule municipal corporation (the "City") and, Elm Meadows Addition, LLC, (the
"Developer").
W ITNESSETH:
WHEREAS, Developer is the developer of certain real property adjacent to Cedar
Avenue, the Elm Meadows development (the "Development"), located within the
corporate limits of the City; and
WHEREAS, Developer shall build roadway improvements on Cedar Avenue for
the Development, which shall include design elements required by the City addressing a
safety hazard; and
WHEREAS, those certain Roadway Improvements (the "Roadway
Improvements") are related to the Developer's Elm Meadows development and are
depicted on Exhibit "A" attached hereto and incorporated herein; and
WHEREAS, the City desires that such Roadway Unprovements be made; and
WHEREAS, the City, to realize cost savings due to the Developers participation in,
and installation of, the Roadway Improvements, now desires that Developer perform such
Roadway Improvements, and that the City participate in costs for said improvements; and
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
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participate in the cost of the Roadway Improvements in a level not to exceed 30 percent
(30°/0) 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 Roadway
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 November 1, 2024. Completion of the Roadway 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 Citv Participation
2.01 The City shall, subject to the terms hereof, participate in the Roadway
Improvements in an amount not to exceed, eight thousand six hundred sixty-two
and 801100 Dollars ($8,662.80), based on the Opinion of Probable Cost Estimate
of the Roadway Improvements, attached hereto as Exhibit "B" and incorporated
herein. It is expressly hereby represented and warranted by Developer to City that
the 2023 total Contract Price regarding this project was estimated to be twenty-
eight thousand eight hundred seventy-six and 00/l00 Dollars ($28,876.00).
2.02 The City shall pay to Developer the actual bid price amount, as limited herein not
to exceed the lesser of $8,662.80 or thirty percent (30%) of the Contract Price upon
completion of the Roadway Improvements herein, 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 Roadway 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 $8,662.80 or thirty percent (30°/0) of the total contract price as required by
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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°/0) of the
Contract Price, the City shall be obligated to pay only the lesser of $8,662.80 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 Roadway
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 Roadway 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 u�
4.01 All of Developer's books and other records related to the Developer's Roadway
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 Roadway 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.
SECTION 6 Indemnitv
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.
Page 3 of 8
SECTION 7 Events of Default 1 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 reyuires 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 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.
Page 4 of 8
For City:
Jarrett Atkinson, City Manager
City of Lubbock
P. O. Box 2000
Lubbock, Texas 79457
Email: jatkinson a,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: mkccnum�mylubbockus
For Developer:
Elm Meadows Addition, LLC
Attn: Preston Despenas
5721 82"d Street
Lubbock, TX 79424
Email: preston(�sdirawcalth.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
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.
Page 5 of 8
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 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
Page 6 of 8
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 verifes 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 reyuirements 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 reyuirements 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.
The parties enter into this Agreement on the 13th day of February, 2024.,,�ipi3�r
CITY OF I�UB
ELM MEADOWS ADDITION, LLC:
W ����
TRAY PAY�, MAYOR PRESTON DESPENAS, PRINCIPAL
Page 7 of 8
ATTEST:
Courtney Paz, City Secretary
APPROVED AS TO CONTENT:
Michael G. Keenum, P.E., Division Director of Engineering/City Engineer
APPROVED AS TO FORM:
r �
elli Leisure, Senior Assistant City Attorney
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