HomeMy WebLinkAboutResolution - 2014-R0146 - Agreement - MRXNO LLC - Kewanee Ave And Drainage Improvements - 04/10/2014RESOLUTION
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 a portion of
Kewanee Avenue and drainage improvements, West End Addition, by and between the City of
Lubbock and MRXNO, LLC, 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 10, 2014
GL C. RO RTSON, MAYOR
ATTEST:
Reb cca Garza, City SecretD
APPROVED AS TO CONTENT:
R. Keith Smith, P.E., Director of Public Works
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
vw:ccdocs/RES.Agrmt-MRXNO, LLC
March 24, 2014
STATE OF TEXAS
COUNTY OF LUBBOCK §
DEVELOPMENT AGREEMENT
FOR CONSTRUCTION OF
A PORTION OF KEWANEE AVENUE &
DRAINAGE IMPROVEMENTS, WEST END ADDITION
This Development Agreement ("Agreement") is entered into this day of
2014, by and between the City of Lubbock, Texas, a Texas home rule
municipal corporation (the "City") and MRXNO, LLC, (the "Developer").
til"NOMM140111
WHEREAS, Developer is the developer of certain real property adjacent to
Kewanee Avenue, located within the corporate limits of the City;
WHEREAS, Developer is required, pursuant to Chapter 38 of the Code of
Ordinances of the City, to participate in the paving of Kewanee Avenue from 29th Street
to 34th Street, and to bear the cost of such participation;
WHEREAS, a portion of Kewanee Avenue is related to the Developer's
development and is unpaved (the "Unpaved Portion"), said Unpaved Portion of Kewanee
Avneue being depicted on Exhibit "A", attached hereto, and is not the responsibility of
Developer to participate in such paving;
WHEREAS, certain Drainage Improvements (the "Drainage Improvements" are
related to the Developer's development and are depicted on Exhibit "A" attached hereto;
Developer Agreement-MRXNO, LLC Page 1 of 9
WHEREAS, the Unpaved Portion and Drainage Improvements are less than thirty
percent (30%) of the Contract Price that the Developer will enter into related to the West
End Addition paving project and drainage improvements;
WHEREAS, the City desires that such Unpaved Portion now be paved and
Drainage Improvements be made;
WHEREAS, the City, to realize cost savings due to economies of scale, now
desires that Developer perform such paving of the Unpaved Portion of Kewanee Avenue
and install Drainage Improvements, and that the City reimburse Developer of such costs;
and
WHEREAS, the City and Developer now desire to enter into this Agreement
wherein City agrees to pay Developer a portion (not to exceed $175,000) of the costs
related to the paving of the Unpaved Portion of Kewanee Avenue and Drainage
Improvements associated with this paving.
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 and Drainage Improvements associated with the
improvements of Kewanee Avenue 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,
2014. Completion of the Unpaved Portion and Drainage Improvements
Developer Agreement-MRXNO, LLC Page 2 of 9
associated with the improvements of Kewanee Avenue shall not be
deemed to have occurred unless and until the City shall have 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 Unpaved
Portion and Drainage Improvements associated with the improvements of
Kewanee Avenue to an amount not to exceed, one hundred seventy-five
thousand and NO/100 Dollars ($175,000.00), based on the actual bid
prices of the Unpaved Portion and Drainage Improvements. It is expressly
hereby represented and warranted by Developer to City that the total
Contract Price regarding this project is estimated to be Eight Hundred
Eleven Thousand Four Hundred Sixty Two and 23/100 Dollars
($811,462.23).
2.02 The City shall pay to Developer the actual bid price amount, as limited
herein not to exceed $175,000.00 upon completion of the Unpaved Portion
and Drainage Improvements associated with the improvements of
Kewanee Avenue, 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 and Drainage Improvements associated
Developer Agreement-MRXNO, LLC Page 3 of 9
with the improvements of Kewanee Avenue is 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
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, but never more than the "not to exceed" sum
provided in Section 2.01, above.
SECTION 3 1'erformance Bond
3.01 Developer shall execute a Performance Bond for the construction of the
Unpaved Portion and Drainage Improvements associated with the
improvements of Kewanee Avenue 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 Unpaved Portion and 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 Safeguards_
Developer Agreement-MRXNO, LLC Page 4 of 9
4.01 All of Developer's books and other records related to the Developer's
Paving and Drainage Improvements associated with Kewanee Avenue
shall be available for inspection by the City at the offices of Developer at
541268 1h Street, Lubbock, Texas, upon and during business hours thereof.
Developer shall furnish actual contract documentation to the City that
depicts the actual costs of paving of Kewanee Avenue and Drainage
Improvement 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
Developer Agreement-MRXNO, LLC Page 5 of 9
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 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
Developer Agreement-MRXNO, LLC Page 6 of 9
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:
James Loomis, City Manager
City of Lubbock
P. O. Box 2000
Lubbock, Texas 79457
Facsimile No. 806-775-2051
with copy to:
R. Keith Smith, P.E., Director of Public Works
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Facsimile No. 806-775-3074
For Developer:
Marvin Crossnoe
MRXNO, LLC
521468 1h Street, Suite 200
Lubbock, TX 79424
Facsimile: 806-687-8570
Email: mcrossnoe@XNODevelopment.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,
Developer Agreement-MRXNO, LLC Page 7 of 9
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
Developer Agreement-MRXNO, LLC Page 8 of 9
provision and another provision in, or related to, this document, this
provision shall control.
The parties enter into this Agreement on the day of 52014
DEVELOPER: MRXNO, LLC
By:
MARVIN C OSSNOE, DEVELOPER
CITY OF L
GLE YV. ROBERSTON, MAYOR
ATTEST:
Reb cca Garza, City. Sec tar
APPROVED AS TO CONTENT:
R. Keith Smith, P.E.
Director of Public Works
APPROVED AS TO FORM:
Chad Weaver
Assistant City Attorney
Developer Agreement-MRXNO, LLC Page 9 of 9
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