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Home My WebLink AboutResolution - 2016-R0044 - 66Th Developer Agreement - 01/28/2016Resolution No. 2016-R0044 Item No. 5.9 January 28, 2016 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 for, and on behalf of, the City of Lubbock, a Developer Agreement for construction of 66th Street between Milwaukee Avenue and Marsha Sharp Freeway, and all associated drainage and sewer improvements, by and between the City of Lubbock and Milwaukee, Ltd. of Lubbock, Texas, and related documents. Said Developer Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on January 28, 2016 GLEAe. ROBERTSON, MAYOR ATTEST: U'�" �:-'A Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: P.E., Director of Public Works APPROVED AS TO FORM: Justin itt, ssi ant City Attorney ccdocs/RES. Developer Agreement— Milwaukee, Ltd. — 66a Street Improvements January 13, 2016 Resolution No. 2016-R0044 STATE OF TEXAS § COUNTY OF LUBBOCK § DEVELOPMENT AGREEMENT FOR DESIGN AND CONSTRUCTION OF A PORTION OF 66TH STREET This Development Agreement ("Agreement") is entered into this 28th day of January, 2016, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City") and Milwaukee, LTD ("the Developer"). WITNESSETH: WHEREAS, Developer is the developer of certain real property adjacent to 66th Street, located within the corporate limits of the City; WHEREAS, Developer is required, pursuant to Chapter 36 of the Code of Ordinances of the City, to participate in the paving of 66th Street from US 62/82 to Milwaukee Avenue, including drainage and sewer improvements within the right of way, and to bear the cost of such participation; WHEREAS, a portion of 66th Street is related to the Developer's development and is unpaved (the "Unpaved Portion"), said Unpaved Portion of 66th Street being depicted on Exhibit "A", attached hereto, and is not the responsibility of Developer to participate in such paving; WHEREAS, the City desires that such Unpaved Portion now be paved; WHEREAS, the City, to realize cost savings due to economies of scale, now desires that Developer perform such paving of the Unpaved Portion of 66th Street and that the City reimburse Developer for such costs; and WHEREAS, the City and Developer now desire to enter into this Agreement wherein City agrees to pay to Developer the City's allocated portion of the costs related to the paving of the Unpaved Portion of 66th Street including drainage and sewer improvements within the right of way. 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 completion of the Unpaved Portion of 66th Street in accordance with all applicable laws, Development Agreement— 66' Street—January 2016 Page 1 of 6 City of Lubbock Code of Ordinances, and City of Lubbock policies. Completion of paving shall occur on or before December 31, 2016. Completion of the Unpaved Portion of 66th Street shall not be deemed to have occurred unless and until the City shall have accepted such paving 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 paving of the Unpaved Portion of 66th Street at an amount not to exceed thirty percent (30%) of the accepted bid costs involving engineering, based on the actual bid prices of the Unpaved Portion, and an additional twenty-two thousand seven hundred seventy-seven and 78/100 Dollars ($22,777.78) collected by the City from a prior paving project (the "Previous Paving Funds"). It is expressly hereby represented and warranted by Developer to City that the total contract price of this project, including engineering, is one million five hundred seventy-one thousand five hundred eighty-six and 98/100 ($1,571,586.98). 2.02 The City shall pay to Developer the actual bid price amount, as limited herein, upon completion of the Unpaved Portion of 66th Street, 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 Unpaved Portion of 66th Street is completed in accordance with all laws, City of Lubbock Code of Ordinance provisions, and City of Lubbock policies. 2.03 Notwithstanding the City's contribution of the Previous Paving Funds, under no circumstance or event shall the participation of the City exceed thirty percent (30%) of the total contract price contemplated 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 thirty percent (30%) of the contract price and the Previous Paving Funds, 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 Unpaved Portion of 66th Street to insure completion of the project. The bond must be executed by a corporate surety in accordance with Chapter Development Agreement — W Street — January 2016 Page 2 of 6 2253, Government Code, State of Texas. The performance bond shall be submitted to the City Engineer of the City of Lubbock on or before beginning any work on the Unpaved Portion. 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 Safeguards 4.01 All of Developer's books and other records related to the Developer's paving of 66th Street shall be available for inspection by the City at the offices of Developer at 7703 LaSalle, Lubbock, Texas, upon and during business hours thereof Developer shall finmish actual contract documentation to the City that depicts the actual costs of paving of 66th Street 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 Indemnity 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 Development Agreement — 6e Street — January 2016 Page 3 of 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 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. For City: For Developer: James Loomis, City Manager George McMahan City of Lubbock Milwaukee, LTD P. O. Box 2000 7703 LaSalle Avenue Lubbock, Texas 79457 Lubbock, Texas 79424 Facsimile No. 806-775-2051 with copy to: L. Wood Franklin, P.E., Director of Public Works City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Facsimile No. 806-775-3074 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, Development Agreement — 66i° Street—January 2016 Page 4 of 6 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. 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. The parties enter into this Agreement on January 28 , 2016. CITY OF LUBBOCK: GLEN C. R BERSYN, MAYOR DEVELOPER: Milwaukee, Ltd By: George McMahan Development, LLC. 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