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HomeMy WebLinkAboutResolution - 2016-R0137 - Betenbough Homes - 04/28/2016Resolution No.2016-R0137 Item No.6.10 April 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 Cost Sharing and Reimbursement Agreement by and between the City of Lubbock and Betenbough Homes,Inc., the Frenship Independent School District,and related documents.Said 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 April 28, 2016 . GLEN C.ROBERTSON.MAYOR ATTEST: \-J jlrO^>^c Rebeica Garza, City Secretary APPROVED AS TO CONTENT: /\V(/od FpaMlin.P.E..DirecToToTtublic Works AJU}JL Michael G.Keenum,P. E., City Engineer APPROVED AS TO FORM: Mitchell Satterwhite,First Assistant City Attorney RES.Agrmt-Frenship ISD COL St Paving Reimbursement 4.13.16 Resolution No. 2016-RO137 COST SHARING AND REIMBURSEMENT AGREEMENT THIS AGREEMENT is entered into by and between the City of Lubbock, Texas, a Texas Home Rule Municipality (the "City"), Betenbough Homes, Inc. ("Betenbough"), the Frenship Independent School District ("FISD"), herein referred to separately as "Party" and collectively as "Parties". RECITALS WHEREAS, the City entered into an agreement via Resolution No. 2015-RO380 on November 19, 2015 with West Texas Paving, Inc. ("Contractor") for certain roadway construction and resurfacing (the "Contract"); and WHEREAS, in light of significantly increased traffic in proximity to the construction project, immediate future needs assessment, and after consultation with the Parties hereto, the City finds that it is in the best interest of the public health, safety, and welfare of the citizens of Lubbock, Texas to execute a change order ("Change Order") to the Contract, providing for a second southbound lane of roadway; and WHEREAS, on April 28, 2016, the City authorized the execution of the Change Order, at an anticipated cost of TWO HUNDRED TWENTY-FOUR THOUSAND SEVEN HUNDRED FIFTEEN and 20/100 DOLLARS ($224,715.20) to complete the contemplated additional construction; and WHEREAS, Texas Education Code section 11.168(b) permits the FISD Board of Trustees to enter into an agreement for the improvement of real property not owned by the District if the improvements benefit real property owned or leased by the District, including improvements to highways, streets, roads, sidewalks, crosswalks utilities and drainage improvements; and WHEREAS, the Parties hereto agree that in order to expedite construction associated with the Change Order, and to fully fund and equitably share among the primary beneficiaries in the additional expense associated therewith, that Betenbough and FISD shall contribute, through partial reimbursement, toward the anticipated costs for work to be completed pursuant to the Change Order as set forth herein. TERMS NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, the Parties hereby do mutually agree as follows: 1.0 Parties Obligations 1.1 City. City shall fund the Change Order as set forth there, and with due care oversee the work done pursuant to the Change Order to completion, unless written consent is otherwise provided by all Parties hereto. 1.2 Betenbough. Betenbough shall reimburse City for a portion of the costs incurred by the City for the Change Order in an amount of NINETY-SEVEN THOUSAND FIVE -HUNDRED TWENTY-SIX and 40/100 DOLLARS ($97,526.40). Cost Sharing and Reimbursement Agreement — COL/Betenbough Homes/Frenship ISD Page 1 of 4 1.3 Frenship. Frenship shall reimburse City for a portion of the costs incurred by the City for the Change Order in an amount of FIFTY-NINE THOUSAND SEVEN HUNDRED SEVENTY-FOUR and 24/100 DOLLARS ($59,774.24). 2.0 Reimbursements 2.1 Betenbough. Betenbough shall reimburse City the amount set forth in Section 1.2 above, in a form acceptable to the City, on or before thirty (30) days from the date hereof. 2.2 Frenship. Frenship shall reimburse City the amount set forth in Section 1.3 above, in a form acceptable to the City, on or before thirty (30) days from the date hereof. The City shall promptly provide evidence of the amount of payments made to Contractor pursuant to the Change Order with its written request for reimbursement. 3.0 Breach The failure of either Party to comply with their obligations, including but not limited to promptly reimbursing City the agreed amounts set forth in Section 2.0, shall constitute a breach of this Agreement. 4.0 Waiver The waiver of any requirement hereunder by any Party hereto shall not be effective unless properly authorized and in writing. 5.0 Term; Termination This Agreement shall automatically terminate after final reimbursement by all parties to the City, or the City's termination of its Contract with Contractor, whichever should occur first. This Agreement is not subject to early termination by any Party. 6.0 Texas Law to Apply This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the Parties created hereunder are performable in Lubbock County, Texas. 7.0 Notice All notices, whether for reimbursement or otherwise, shall be in writing and may be hand delivered, or sent by registered or certified mail, postage prepaid, return receipt requested to the following addresses: City of Lubbock Attn: City Manager P.O. Box 2000 Lubbock, Texas 79457 Cost Sharing and Reimbursement Agreement — COL/Be ten bough Homes/Frenship ISD Page 2 of 4 Betenbough Homes, Inc. Attn: Chris Berry 6305 82no Street Lubbock, Texas 79424 Frenship Independent School District Attn: Superintendent of Schools 50171b Street Wolfforth, Texas 79382 8.0 Legal Construction If any one or more of the provisions contained in this agreement shall for any reason be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein. 9.0 Non -Arbitration The parties reserve 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 parties 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, the former shall control. 10.0 Entire Agreement This Agreement supersedes any and all other agreements, either oral or in writing, between the Parties hereto with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect to said matter. Each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any Party or anyone acting on behalf of any Party which are not embodied herein and that no other agreements, statement, or promise not contained in this Agreement shall be valid or binding. No modification concerning this instrument shall be of any force or effect, excepting a subsequent amendment in writing signed by the Parties. No official, representative, agent or employee of either entity, has any authority to modify this Agreement except pursuant to express authority to do so granted by the governing body. 11.0 Parties Bound/Authority This Agreement shall be binding upon and inure to the benefit of the Parties to it and their respective legal representatives, successors and assigns where permitted by this Agreement. The undersigned represent and warrant their authority to execute this Agreement, and to bind the Parties hereto. Cost Sharing and Reimbursement Agreement -COL/Betenbough Homes/Frenship ISD Page 3 of 4 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. City of Lubbock: GLEN C.ROBERTSO yor Attest: X- Rebta Garza, City Secretary Betenbough Homes, Inc. 66 7 Z�� Chris Berry, Community De toper Frenship Independent School District Michelle McCord, Ed.D., Superintendent Cost Sharing and Reimbursement Agreement — COL/Betenbough Homes/Frenship 15D Page 4 of 4