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HomeMy WebLinkAboutResolution - 2008-R0152 - Development Agreement - Orchard Park Development LTD - Memphis Ave Services - 04/24/2008Resolution No. 2008-RO152 Item No. 5.17 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Development Agreement for Design and Construction of Portion of Memphis Avenue, by and between the City of Lubbock and Orchard Park Development, LTD, and all 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 Council. Executed by the City Council this 24th day of April 2008. L=4�� DAVID A. MILLER, MAYOR ATTEST: -At--A� k (:�c RRebea Carza, City Secretary APPROVED AS TO CONTENT: 4oomis, Assistant City Manager/Transportation & Public Works arsha Reed, Director of Public Works APPROVED AS TO FORM: Richard K. Casner, First Assistant City Attorney ao/ecdocs/Development Agreeement-Orchard Park Resolution No. 2008-RO152 STATE OF TEXAS § COUNTY OF LUBBOCK § DEVELOPMENT AGREEMENT for DESIGN and CONSTRUCTION of PORTION OF MEMPHIS AVENUE This Development Agreement ("Agreement") is entered into this 24th day of April , 2008, by and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City") and Orchard Park Development, LTD, a Texas limited partnership (the "Developer") WITNESSETH: WHEREAS, Developer is the developer of certain real property adjacent to Memphis Avenue, located within the corporate limits of the City; WHEREAS, Developer is required, pursuant to Chapter 25 of the Code of Ordinances of the City, to participate in the paving of Memphis Avenue, and to bear the cost of such participation; WHEREAS, a portion of Memphis Avenue is related to the Developer's development and is unpaved (the "Unpaved Portion"), said Unpaved Portion of Memphis Avenue being depicted on Exhibit "A", attached hereto, and is not the responsibility of Developer to participate in such paving; WHEREAS, the Unpaved Portion is approximately twelve percent (12 %) of the contract that the Developer will enter into related to the Memphis Avenue paving project; WHEREAS, the City desires that such Unpaved Portion now be paved; Developer Agreement Page l of 10 WHEREAS, the City, to realize cost savings due to economies of scale, now desires that Developer perform such paving of the Unpaved Portion of Memphis Avenue 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 Memphis Avenue. 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 Memphis Avenue in accordance with all applicable laws, City of Lubbock Code of Ordinances, and City of Lubbock policies. Completion of paving shall occur on or before August 31, 2009. Completion of the Unpaved Portion of Memphis Avenue 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 Memphis Avenue to an amount not to exceed, Ninety - Developer Agreement Page 2 of 10 Two Thousand Six Hundred Seventy and 78/100 Dollars ($92,670.78), based on the actual bid prices of the Unpaved Portion. 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 Three Thousand Fifty -Two and 63/100 Dollars ($803,052.63). 2.02 The City shall pay to Developer the actual bid price amount, as limited herein, upon completion of the Unpaved Portion of Memphis 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 of Memphis 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 Performance Bond 3.01 Developer shall execute a performance bond for the construction of the Unpaved Portion of Memphis Avenue to insure completion of the project. Deveioper Agreement Page 3 of 10 The bond must be executed by a corporate surety in accordance with Chapter 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 4.41 All of Developer's books and other records related to the Developer's paving of Memphis Avenue shall be available for inspection by the City at the offices of Developer at 4621 94t" 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 Memphis Avenue 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 Developer Agreement Page 4 of 10 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. Developer Agreement Page 5 of 10 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: Lee Ann Dumbauld, City Manager City of Lubbock P. O. Box 2000 Lubbock, Texas 79457 Facsimile No. 806-775-2051 with copy to: Marsha Reed, Director of Public Works City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Facsimile No. 806-775-3074 Developer Agreement Page 6 of 10 For Developer: W. Jewell Davis 462194" Street Lubbock, TX 79424 Facsimile No. 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. 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 Developer Agreement Page 7 of 10 represent that said budget item will actually be adopted as this determination is within the sole discretion of the City Council. The parties enter into this Agreement on the 24th day of Aril , 2008. ATTEST: 4 Reb cc�Garz�a,City Secretary OVED AS TO CONTENT: MAMA James Loomis DEVELOPER: ORCHARD PARK DEVELOPMENT, LTD, a Texas limited partnership By: k 01-milkll W. Jewellvis, General Partner of WJD Enterprise , LLC, a Texas Limited Liability Company. CITY OF LUBBOCK DAVID A. MILLER, MAYOR Msistant City Manager/Transportation and Public Works /a, A-!�J�w Marsha Reed Director of Public Works Developer Agreement Page 8 of 10 APPROVED AS TO FORM: -Z"I�, C,� Richard k. Casner First Assistant City Attorney ml/Richard/Developer Agreement-G.McMahan 040308 Developer Agreement Page 9 of 10 Z Z 1 9 ^ 10 i1 12 13 Z } 1 Exhibit A. Street Paving of East Half of Memphis Avenue . From the Alley North of 107th Street to 1 1 1 th Street Resolution No . 2 0 0 8 -R 01 5 2 ® •-O as �a . ss• - u .r u _ m' sr A 1075TH 5T • is 107TH ST ]2' J2' Jsr- - 3T 1 - ag 165 164 163 a 162 15 154 153 152 151 159 149 148^ 147= 4 ,(,1 X74 _ 75 78 77 7 ,A to be Paved 1 192 191 19C 189 188 187 186 185 _ the 'Un aved Portion" 1 1 i ,. 176 173 � 1 W '$ 177 172 59 w W 199k 200'' Q _ 79= 184 = 181 B 182 Q 139 14O iii 142 143 144 145 1464 r,� 99 91 I 92 93 914&1 - °a . Z 180 169 � 106TH ST 20. 20 206 205 204 203 187 p _ 186 0 185 184 183 �' 13 r e 130= 155: s 134= g 133. 13 ' W 1313 131 ' 12&a 12 +• 12T t2 12 168 g v� UNSUBDIVIDED 1 1 1 mzi 3 182 Z Z 1 9 ^ 10 i1 12 13 Z } J z 1 . • is 107TH ST � 1 Last Half of Memphis Avenue 1 '9 175 t 174 ,A to be Paved 1 192 191 19C 189 188 187 186 185 _ the 'Un aved Portion" 1 1 i ,. 176 173 � 1 W '$ 177 172 59 193M 194+1 195 196 197 193 199k 200'' Q _ g - 178 171 1 i a• a ! a'QTH ST as w _ 179 170 9 Q - °a . Z 180 169 � 1 1 20. 20 206 205 204 203 202;201 � j 1 g 181 168 g v� UNSUBDIVIDED 1 1 3 182 167 'g i 1 20% 219 211 212 213 214 21kp 216 a 9 183 ua 166 1 1 _ u ew -, ea - 184 165 S 1 10TH ST 161 164 I 17� 218 219 229 22t 222 Y223 224 16 °$ 0 163 West Half of Memphis Avenue I °' 225 to be Paved at Developer Cost ; 2z6 35y. 234 233 232 231 234 229 — 1 1 226 3z227 < i ll!' LI t .. UNSU6 olVIDEp Z } 0 104 200 300 400 500 Survey Feet J z . J z