HomeMy WebLinkAboutResolution - 2007-R0377 - Agreement - Bacon Crest LTD - Design And Construction Of Iola Avenue - 08/23/2007Resolution No. 2007-RO377
August 23, 2007
item No. 5.10
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 Iola Avenue between the City of Lubbock and
Bacon Crest, LTD, and all related documents. Said Development Agreement for Design
and Construction of Portion of Iola Avenue is attached hereto and incorporated in this
Resolution as if fully set forth herein and shall be included in the minutes of the Council.
Passed by the City Council this 23rd day of August_ 2007.
ATTEST:
`—
DAVID A. PALLER, MAYOR
Reb cca Garza, City Secretary
APPJR,OVED AS TO CONTENT:
�t/
4s Loomis
stant City Manager/Transportation and Public Works
i/..., - l''6 , .,
lfars�.a Reed
Director of Public Works
APPROVED AS FORM:
Richard K. Casner
First Assistant City Attorney
and/ccdocs/Iola Avenuc.McMahan-res
August 6, 2007
Resolution No. 2007-RO377
STATE OF TEXAS §
COUNTY OF LUBBOCK §
DEVELOPMENT AGREEMENT
for
DESIGN and CONSTRUCTION
of
PORTION OF IOLA AVENUE
This Development Agreement ("Agreement") is entered into this 23rd day of
August , 2007, by and between the City of Lubbock, Texas, a Texas home rule
municipal corporation (the "City") and Bacon Crest, LTD, a Texas limited partnership
(the "Developer").
WITNESSETH:
WHEREAS, Developer is the developer of certain real property adjacent to Iola
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 Iola Avenue, and to bear the cost of
such participation;
WHEREAS, a portion of Iola Avenue is unpaved (the "Unpaved Portion"), said
Unpaved Portion of Iola 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 fifteen percent (15%) of the contract that the
Developer will enter into related to the Iola Avenue paving project;
WHEREAS, the City desires that such Unpaved Portion now be paved;
Developer Agreement — Iola Avenue Page I of 9
WHEREAS, the City, to realize cost savings due to economies of scale, now
desires that Developer perform such paving of the Unpaved Portion of Iola 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 Iola 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 Iola 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 December 1, 2007.
Completion of the Unpaved Portion of Iola 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 Ci1y Participation
2.01 The City shall, subject to the terms hereof, participate in the paving of the
Unpaved Portion of Iola Avenue to an amount not to exceed, Thirty
Developer Agreement — Iola Avenue Page 2 of 9
Thousand and no/100 Dollars ($30,000.00), 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 One Hundred Eighty -Eight Thousand Two Hundred
Thirty -Six Dollars ($188,236.00).
2.02 The City shall pay to Developer the actual bid price amount, as limited
herein, upon completion of the Unpaved Portion of Iola 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 Iola 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 herein, 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.
SECTION 3 Performance Bond
3,01 Developer shall execute a performance bond for the construction of the
Unpaved Portion of Iola 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 performance bond shall be
Developer Agreement — Iola Avenue Page 3 of 9
submitted to the City Engineer of the City of Lubbock on or before
2007. 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 Iola Avenue shall be available for inspection by the City at the
offices of Developer at 7209 76th 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 Iola 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
occasioned by or related to Developer's breach of any of the terms or
provisions of this Agreement.
Developer Agreement — Iola Avenue Page 4 of 9
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, or equity. 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
Developer Agreement — Iola Avenue Page 5 of 9
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
For Developer:
George H. McMahan
7209 76th Street
Lubbock, TX
Facsimile No.
Developer Agreement — Iola Avenue Page 6 of 9
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
represent that said budget item, will actually be adopted as this
determination is within the sole discretion of the City Council.
Developer Agreement — Iola Avenue Page 7 of 9
The parties enter into this Agreement on the 23rd day of August , 2007.
CITY OF LUBBOCK
DAVID A. ALLER, MAYOR
ATTEST:
CA2��,-
Refiecca Garza, City Secret
APPROVED AS TO CONTENT:
U� de;�,
J es Loomis
ssistant City Manager/Transportation and Public Works
Marsha Reed
Director of Public Works
APPROVED AS TO FORM:
Richard K. Casner
First Assistant City Attorney
Developer Agreement — Iola Avenue Page 8 of 9
DEVELOPER:
BACON CREST, LTD
By: - IL,
George McMahan, Managing Partner of
George McMahan, LLC, Managing Partner
of Bacon Crest, LTD, a Texas limited
partnership
ml/RichardlDeve[oper Agreement -G. McMahan
June 27, 2007
Developer Agreement — Iola Avenue Rage 9 of 9
Resolution No, 2007-RO377
40
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