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HomeMy WebLinkAboutItem 15 - East Dallas RoadMEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL len FROM: BRUNO RUMBELOW, CITY MANAGER MEETING DATE: SEPTEMBER 3, 2013 SUBJECT: ROAD CONSTRUCTION AND MAINTENANCE AGREEMENT RECOMMENDATION: City Council consider approving a Road Construction and Maintenance Agreement with Prologis U. S. Logistics Fund, L. P. for the reconstruction and maintenance of the northern one half of East Dallas Road extending from Texan Trail east for a distance of approximately 775 feet, authorize the City Manager to execute said agreement and take any necessary action. 1I_[e7-'(cl Z 11 17i At the time of the development of the JA Green complex in the northeast corner of Dallas Road, Texan Trail was being planned and designed for a six -lane roadway with center median. This center median would eliminate left turns into and out of the warehousing complex. To offset this access impact, JA Green was allowed to construct a private drive in the northern one half of Dallas Road right -of -way east of Texan Trail to provide the warehousing operation with access to the signalized intersection at Dallas Road and Texan Trail. The City assumed no maintenance responsibility for this pavement. Over the years, the pavement has experienced deterioration due to the heavy truck traffic and the substandard pavement thickness. Oncor is planning a substation in the northeast corner of the intersection with access from this roadway. Prologis has proposed to the City that they reconstruct the roadway to City standards sufficient to serve commercial trucks and the City then accept the maintenance of the roadway as we would with any developer constructed roadway. The agreement has been developed by Prologis attorneys and Matthew Boyle of our City Attorney's office with input from Public Works' staff based upon our standard Developer Agreement that we use for public /private joint participation projects. The roadway will be constructed at Prologis's sole cost with a two year maintenance bond. Wagenda\2013 \09- 3- 130allas Rd Construction & Maintenance Agreement Upon expiration of the maintenance bond, final inspection by City staff and completion of any repairs needed as a result of the final inspection, the City will accept maintenance of the roadway. Staff recommends approval. 0: \agenda \2013 \09 -3 -13 \Dallas Rd Construction & Maintenance Agreement This Road Construction and Maintenance Agreement (this "Agreement ") is made as of this August, 2013 (the "Effective Date "), by and between Prologis U.S. Logistics Fund, L.P., a foreign limited partnership with its principal office located at 4545 Airport Way, Denver, Colorado 80239 ( "Prologis ") and the City of Grapevine, Texas, a home -rule municipality located in Tarrant County, Texas, with its principal offices located at 200 S. Main Street, Grapevine, Texas 76051 (the "City "). Prologis and the City sometimes are referred to herein collectively as the "Parties" and individually as a "Party." A. Pursuant to that certain Road Use and Maintenance Agreement dated December 30, 1998 by and between 1085 Partnership, Ltd. and Magnum Realty Corp. (the "Prior Maintenance Agreement "), the City contends that Prologis currently has responsibility for maintenance of that certain road known as Old Dallas Road, which bears the following legal description (the "Road "): Commencing at the SW Corner of Dallas Road R.O.W. at Business 114, also being on the east right of way line of Business 114; THENCE North 89 020'00" East a distance of 758.519 feet; THENCE North 0 040100" West a distance of 50.000 feet; THENCE South 89 °20'00" West a distance of 773.219 feet; THENCE South 17 °3'00" East a distance of 52.116 feet; to the point or place of beginning 38293.433 square feet, 0.879 Acres, more or less. B. As described further in the Prior Maintenance Agreement, the Road is a private access road, and has been used as a road since that time. C. The Parties desire that Prologis reconstruct the Road and all required associated improvements (which shall be included in the definition of "Road ") in accordance with all applicable City specifications and standards (collectively, the "Ordinances "), and that following the completion of such reconstruction and the inspection of the reconstructed Road by the City, that the City accept the Road as a public road and accept the Road for all future maintenance, all on the terms and conditions described herein. AGREEMENT In consideration of the mutual covenants, conditions and agreements contained herein and for such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I . Reconstruction of the Road. (a) Scheduling. Prologis shall begin preparations for reconstruction of the Road in accordance with the terms of the Agreement promptly following the Effective Date. The Parties intend that the reconstruction be completed by January 1, 2014, provided that any delay in reconstruction shall have no effect on the rights of the Parties hereunder. (b) Provision and Approval of Plans. Prologis shall develop design plans for the reconstruction of the Road (the "Plans "), and shall provide a copy of the Plans to the City promptly after they are complete. The City shall review the Plans for conformance with applicable Ordinances, and shall endeavor to complete such review within fifteen (15) days after delivery of the Plans to the City. The City agrees not to impose any additional requirements on the Plans and on the Road that are not currently contained in the City's applicable Ordinances or applied to similar roads in the City. In the event the City determines that the reconstruction described in the Plans conforms with all applicable Ordinances, the City shall notify Prologis in writing of its approval of the Plans. In the event the City determines that the reconstruction described in the Plans does not conform with all applicable Ordinances, the City shall notify Prologis in a reasonably detailed writing of the issue(s) resulting in the nonconformance and how the Plans must be changed or corrected to conform to the Ordinances, and Prologis shall use commercially reasonable efforts to address such issue(s) and thereafter will resubmit the Plans to the City for approval in accordance with this section. (c) Indemnity Against Design Defects. Approval of the City Engineer or other City employee, official, consultant, employee, or officer of any plans, designs or specifications submitted by Prologis under this Agreement shall not constitute or be deemed to be a release of the responsibility and liability of the Prologis, their engineer, contractors, employees, officers, or agents for the accuracy and competency of their design and specifications. Such approval shall not be deemed to be an assumption of such responsibility or liability by the City for any defect in the design and specifications prepared by the consulting engineer, his officers, agents, servants, or employees, it being the intent of the Parties that approval by the City Engineer or other City employee, official, consultant, or officer signifies the City's approval of only the general design concept of the improvements to be constructed in accordance with applicable Ordinances. In this connection, Prologis shall, for a period of one (1) year following the City's acceptance of the Road, indemnify and hold harmless the City, its officials, officers, agents, servants and employees, from any loss, damage, liability or expense occurring after the City's acceptance of the Road on account of damage to property and injuries, including death, to any and all persons which may arise out of any defect, deficiency or negligence of the engineer's designs and specifications incorporated into any improvements constructed by Prologis in accordance therewith, and Prologis shall defend at its own expense any suits or other proceedings brought against the City, its officials, officers, agents, servants or employees, or any of them, on account thereof, to pay all expenses and satisfy all judgments which may be incurred by or rendered against them, collectively or individually, personally or in their official capacity, in connection herewith. This Section 1(c) does not apply to claims arising from or based only on any negligence or willful misconduct on the part of the City, its officials, officers, agents, servants and employees. Further, Prologis's maximum liability under this Section 1(c) shall not exceed the policy limit of the insurance policy(ies) Prologis is required to -2- carry under Section 1(g). This Agreement does not constitute a waiver of any immunity belonging to the City. (d) Approval of Plans Prologis and the City agree that approval of Plans and specifications by the City shall not be construed as representing or implying that improvements built in accordance therewith shall be free of defects. Any such approvals shall in no event be construed as representing or guaranteeing that any improvement built in accordance therewith will be designed or built in a good and workmanlike manner. Neither the City nor its elected officials, officers, employees, contractors and /or agents shall be responsible or liable in damages or otherwise to anyone submitting Plans and specifications for approval by the City for any defects in any plans or specifications submitted, revised, or approved, in the loss or damages to any person arising out of approval or disapproval or failure to approve or disapprove any Plans or specifications, for any loss or damage arising from the non - compliance of such Plans or specifications with any governmental ordinance or regulation, nor any defects in construction undertaken pursuant to such plans and specifications. (e) Construction in Compliance with Ordinances. Following approval of the Plans by the City and Prologis's obtaining of the Maintenance Bond in accordance with Section ILal, Prologis, through its contractor, shall promptly proceed with the reconstruction of the Road in accordance with the Plans and in accordance with all applicable Ordinances. (f) Cost of Reconstruction. The entire cost of design and development of the Plans, and reconstruction of the Road in accordance with the Plans, shall be borne entirely by Prologis. (g) Insurance. During the reconstruction process, and for one (1) year following the City's acceptance of the Road, Prologis shall carry insurance in the following types and amounts, and shall name the City as additional insured on any related insurance policy (i) Comprehensive General Liability: Bodily Injury $1,000,000.00 per occurrence and Property Damage $2,000,000.00 aggregate. (ii) Worker's Compensation: Statutory (iii) Employer's Liability: $500,000.00 (iv) Comprehensive Automobile Liability: $1,000,000.00 combined single limit. 2. Inspections. The City shall have the right to inspect the reconstructed Road during the reconstruction as determined by the City. Following any such inspection, in the event the City determines that the relevant stage of reconstruction of the Road does not conform with all applicable Ordinances and /or the Plans ( "Non- Conformance "), the City shall notify Prologis in a reasonably detailed writing within five (5) working days of the inspection of the issue(s) resulting in the Non - Conformance and the actions required to correct the Non - Conformance, and Prologis shall use commercially reasonable efforts to address such issue(s) and following the taking of such actions will provide notice to the City and will request re- inspection by the City of that stage of reconstruction for approval in accordance with this section. -3- 3. Additional Requirements after Final Inspection. After the City has approved the final stage of the reconstruction of the Road in accordance with Section 2 above, the City shall provide written notification within seven (7) calendar days to Prologis that the reconstructed Road conforms with all applicable Ordinances and the Plans. If the City fails to provide such timely written notification, by virtue of this Agreement, the Parties shall be deemed to have agreed that Prologis reconstructed the Road in conformance with all applicable Ordinances and the Plans ( "Stipulation "). Following Prologis's receipt of such notification: (a) Maintenance Bond. Prologis, through its contractor, shall obtain and deliver to the City, a maintenance bond covering the entirety of the Road, in an amount equal to 25% of the reconstruction cost of the Road as shown in the Plans for a period of two years after the Road has been accepted by the City. (b) Proof of Pam. Prologis shall provide paperwork and other proof reasonably required by the City, including without limitation a performance and payment bond covering the entire cost that all reconstruction and other work related to the Road have been fully paid such that no party has the right to claim a lien over any portion of the Road relating to the reconstruction. 4. Transfer, Acceptance and Dedication. Effective as of the date that all of the items in Section 2 are satisfied (the "Transfer Date "), and subject to the warranties of the contractor performing the work and all required Bonds, the City agrees to accept all maintenance responsibilities associated with the Road. Promptly following the Transfer Date, the City shall take all necessary steps to dedicate the Road as a public road, provided that Prologis and any of its tenants, customers, vendors and /or invitees shall have the right to use the Road at all times. 5. Maintenance Following Transfer. At all times on and after the Transfer Date, the City shall have sole responsibility for maintenance of the Road, and Prologis shall have no responsibility for maintenance of the Road. b. Additional Provisions. (a) No Applicable Bidding Ordinance. The City and Prologis agree that the Road reconstruction is being completed by Prologis or its contractors. Prologis is free to use any contractor of its choosing in performing the reconstruction contemplated by this Agreement. If the Parties later determine other procurement requirements are applicable, the Parties shall reasonably cooperate to meet such requirements going forward. (b) No Reliance or Use of Agreement by Third Parties. There are no third party beneficiaries to this Agreement, and no one has the right to enforce any of the provisions of this Agreement other than Prologis and the City. Without limiting the foregoing, any acknowledgement of current or future maintenance responsibility for the Road cannot be used by, relied upon, or construed in the favor of any third party. (c) Cooperation and Further Assurances. Prologis and the City shall cooperate at all times from and after the Effective Date with respect to the supplying of any information requested by the other Party regarding any of the matters set forth in this Agreement. Subsequent to the Effective Date, and without any additional consideration, each of Prologis and -4- the City shall execute and deliver any further documents or legal instruments, and perform any acts, that are or may become necessary to effectuate the purposes of this Agreement, including without limitation obtaining any required official or other approvals of the City and its government for entry into and ratification of this Agreement and for transfer of maintenance responsibilities for the Road following the fulfillment of the requirements set forth in this Agreement. (d) Notices. Any notice, request, approval, demand, instruction or any other communication to be given to either party hereunder shall be in writing, and conclusively shall be deemed to have been delivered when personally delivered or when (i) deposited for overnight deliver with an overnight courier service or (b) deposited in the U.S. mail, sent by certified mail, return receipt requested, and such notices are addressed to the following addresses: If to Prologis: Prologis Attn: Office of the General Counsel 4545 Airport Way Denver, Colorado 80239 If to the City: with a copy to: Joe Lea McGinnis, Lochridge & Kilgore, LLP 600 Congress Avenue, Suite 2100 Austin, Texas 78701 with a copy to: City of Grapevine Matthew C.G. Boyle Attn: Stan Laster, Director of Public Works Boyle & Lowry, LLP 200 S. Main Street 4201 Wingren, Suite 108 Grapevine, Texas 76051 Irving, Texas 75062 (e) Amendment; Assignment; Entire Agreement. This Agreement may be amended only by a writing executed by both Parties. This Agreement may not be assigned by either Party without the express written consent of the other Party. This Agreement represents the entire agreement between the Parties with respect to its subject matter and supersedes all prior discussions and agreements between the Parties with respect to such subject matter. (f) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to its conflicts of laws principles. (g) Waiver. No waiver or consent to any breach or other default of any of the terms of this Agreement shall be deemed to constitute a waiver of any subsequent breach of the same or any other term or condition of this Agreement. (h) Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. (i) Headings and Interpretation. Section headings used herein are for reference and convenience only, and shall not affect the interpretation of this Agreement. When the context so requires in this Agreement, words of one gender include one or more other genders, singular words include the plural, and plural words include the singular. Use of the -5- word "include" or "including" is intended as an introduction to illustrative matters and not as a limitation. (j} Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and the illegal, invalid or unenforceable provision shall be enforced to the fullest extent permitted by law (provided that such provisions as enforced continue to substantially reflect the original intention of the Parties). Executed to be effective as of the Effective Date, provided that the City's obligations with respect to maintenance of the Road shall not be effective until the Transfer Date. mom CITY OF GRAPEVINE, TEXAS, A Home Rule Municipality Name: Title: ATTEST: Jodi Brown, City Secretary STATE OF TEXAS § COUNTY "• This instrument was acknowledged before me the _ day of , 2013, by of the City of Grapevine, Texas, a home rule municipality, on behalf of the City. Notary Public Signature -7- STATE OF TEXAS § COUNTY OF TARRANT § said [PROLOGIS ENTITY] Name: Title: This instrument was acknowledged before me the _ day of , 2013, by of [Prologis Entity], a , on behalf of Notary Public Signature -s-