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HomeMy WebLinkAboutItem 04 - Wal-Mart Developer ContractITEM • ._ 4 - MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROGER NELSON, CITY MANAGE MEETING DATE: FEBRUARY 4, 2003 SUBJECT: WAL-MART DEVELOPER CONTRACT RECOMMENDATION: City Council consider approving a developer contract with Wal-Mart Stores Texas, L.P. establishing responsibilities relative to improvements on TxDOT right-of-way and DART right-of-way, authorize staff to execute said contract, and take any necessary action. BACKGROUND INFORMATION: Staff finalized negotiations with DART representatives to grant the two "at grade" crossings from SH 26 into the Wal-Mart and Sam's Club site in September, 2002. City Council approved the agreement with DART on October 1, 2002. The principal access drive crossing will be located at the signalized intersection of SH 26 and Ernest Dean Parkway and the second one will be located approximately 800 feet southwest along SH 26. The charge for the two crossings was established by DART at $135,000.00. Wal-Mart agreed to this cost in early summer and forwarded a check to the City for the cost. DART officials had asked the City to hold the funds until the License Agreement was approved by the City and both could be submitted in a single package. Staff has subsequently prepared a developer contract between the City and Wal-Mart addressing their construction on DART right-of-way. This developer contract with Wal-Mart will insure that their construction on DART property will comply with the DART requirements stipulated in DART's standard License Agreement with the City. Staff recommends approval. JLH/Ig oAagenda\02/04/03\Wal-Mart Developer Contract.doc January 28, 2003 (10:OOAM) STATE OF TEXAS § COUNTY OF TARRANT § DEVELOPER'S CONTRACT CITY OF GRAPEVINE § WHEREAS, Wal-Mart Stores Texas, L.P., a Texas limited partnership, hereinafter referred to as "Developer", is the owner of a tract of land in the City of Grapevine, Tarrant County, Texas, a Texas home -rule City, hereinafter referred to as "City", which tract of land ("Subject Property") is described in Exhibit "A", which is attached hereto and incorporated herein for all purposes; and WHEREAS, Development of Subject Property will generate a volume of traffic which necessitates the construction of two driveways with "at -grade" railroad crossings, traffic signal improvements at the intersection of Ernest Dean Parkway and SH 26, right turn deceleration lanes, full railroad signalization and warning devices at both locations, ("Project"), to provide principal access to subject property; and WHEREAS, the City's approved Thoroughfare Plan identifies SH 26 as a six (6) lane divided roadway from the Col leyviIle City Limits to the intersection with SH 114; and WHEREAS, the Developer and City agree that the design and construction of the Project shall be undertaken by the Developer at their sole cost; and WHEREAS, the scope of the Project shall consist of: 1. the construction, installation, and maintenance of two at -grade public road crossings to access Sam's Club & Wal-Mart site, consisting of 1.) a seven lane median divided roadway crossing at Mile Post 614.61 and 2.) a two lane median divided roadway crossing at Mile Post 614.78, right turn deceleration lanes at Mile Post 614.61 and at 614.78, and all pavement, pavement markings, drainage, drainage facilities, signage and warning devices in Grapevine, Tarrant County, Texas. . 2. the installation of traffic signalization, including poles, mast arms, controller & cabinet, wiring, conduit, pull boxes, detector loops, railroad pre-emption, pavement markings, signage and other appurtenances incidental to the pursuit of said construction of signal improvements at the intersection of SH 26 and Ernest Dean Parkway, and 3. the construction of railroad crossing signalization and warning devices at Mile Post 614.61 and Mile Post 614.78 including signals, gates, detectors, controller, controller cabinet, preemption and other appurtenances incidental to the pursuit of said construction of signal improvements, and O:\contract\WaiMart SH26 DART 10-29-02 Dev Contract WHEREAS, the Developer and City agree that the contract for the construction of the Project shall be exclusively between the Developer and the contractor and that the City shall have no contractual relationship with the contractor within the scope of this Developers Contract for the construction of this Project; and WHEREAS, the Developer and City agree that the contractor for the construction of the Project shall be chosen from a list of contractors authorized to perform railroad crossing work on Dallas Area Rapid Transit ("DART") lines, provided by DART; and WHEREAS, the Developer and City agree that the contract for the construction of the full railroad signalization and warning devices element of the Project shall be undertaken by the Developer utilizing Railroad Controls L. L. C., the contractor authorized to construct railroad signalization and warning devices on DART rail lines; and WHEREAS, the Developer agrees that the construction contractor for the Project shall be required to provide performance, payment and maintenance bonds. Said performance and payment bonds shall be issued by an approved surety company holding a permit from the State of Texas to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States), shall be issued in the name of the City, and shall be issued in the full amount of the cost to construct the Project; and Said maintenance bond shall be issued by a an approved surety company holding a permit from the State of Texas to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States), shall be issued in the name of the City of Grapevine, shall be issued in an amount of twenty-five percent (250/0) of the total construction cost of the Project, and shall extend for a period of two years from the date of acceptance of the Project by the City; and WHEREAS, the Developer agrees that the contractor shall provide insurance coverage for the Project in a form and In am iounts satisfactory to Life k.�ILY 01 UfdPUVIfIU, DART and the State of Texas (TxDOT) for Construction Projects; and WHEREAS, the Developer agrees that said insurance shall name the City of Grapevine, the State of Texas, DART, and Fort Worth and Western Railroad as additional insured; and WHEREAS, the Developer agrees that the contractor shall execute DART's Standard Contractors Agreement covering the Project; and WHEREAS, the Developer agrees to fully pay for all labor and materials used in, on, or about the Project, and will not permit or suffer any mechanic's or materialmen's liens of any nature to be affixed against the Project by reason of any work done or 0:\contract\WalMart SH26 DART 10-29-02 Dev Contract N materials furnished to the Project at Developer's instance or request; and WHEREAS, the Developer agrees to provide funding in an amount of $135,000 to the City as a requirement of DART to issue the License for the two crossings. NOW, THEREFORE, the parties to this Contract, the City and the Developer, do enter into this Developer Contract, for good and valuable consideration, the receipt and sufficiency of such consideration being hereby acknowledged, and in the mutual promises and mutual benefits that flow to each party, do hereby contract, covenant, warrant, and agree as follows: Section 1. That all matters stated in the preamble above are found to be true and correct and are incorporated into the body of this Developer Contract by reference as if copied verbatim in their entirety. Section 2. That the Developer hereby agrees to construct the Project as herein described to provide adequate traffic capacity to serve the proposed development of Subject Property. The Project shall comply with City ordinances, State of Texas requirements, and DART requirements. Section 3. That the Developer hereby agrees, at its sole cost, to employ a civil engineer registered in the State of Texas to prepare and seal the construction plans of the Project prior to construction. Railroad Controls, L.L.C. (RCL) will prepare and seal construction plans for railroad crossing signalization and Dunaway Associates, Inc. will prepare and seal construction plans for Wal-Mart/Sam's Club sitework. Section 4. That the Developer hereby agrees, at its sole cost, to contract with said registered civil engineer (RCL) to provide Construction Phase Engineering Services to the City during the construction of the Project. Section 5. That the Developer agrees to construct the Project at its sole cost. Section 6. Indemnity Provisions The Developer shall waive all claims, fully release, indemnify, defend and hold harmless the City, DART, and the State of Texas and all of their officials, officers, agents, consultants and employees in both their public and private capacities, from any and all liability, claims, suits, demands or causes of action, including all expenses of litigation and / or settlement which may arise by injury to property or person occasioned by the negligence, gross negligence, or intentional misconduct of Developer, its officers, agents, consultants and employees 0:\contract\WalMart SH26 DART 10-29-02 Dev Contract 3 arising out of or in connection with the Project, this Contract, or on, near, or about the Property, and Developer will, at its own cost and expense, defend and protect the City, DART and the State of Texas and all of their officials, officers, agents, consultants and employees in both their public and private capacities, from any and all such claims and demands. Also, Developer agrees to and shall indemnify, defend and hold harmless the City, DART and the State of Texas and all of their officials, officers, agents, consultants and employees in both their public and private capacities, from and against any and all claims, losses, damages, causes of action and suit, occasioned by the negligence, gross negligence, or intentional misconduct of Developer, its officers, agents, consultants, and employees, including all expenses of litigation, court costs and attorneys' fees for injury to or death of any person or for any damage to any property arising out of or in connection with the construction under the Project, this Contract on, about, or near the Subject Property. THIS INDEMNITY SHALL APPLY WHETHER THE CLAIMS, SUITS, LOSSES, DAMAGES, CAUSES OF ACTION OR LIABILITY ARISE IN WHOLE OR IN PART FROM THE INTENTIONAL ACTS OR NEGLIGENCE OF DEVELOPER OR ANY OF ITS OFFICERS, OFFICIALS, AGENTS, CONSULTANTS AND EMPLOYEES, WHETHER SAID NEGLIGENCE IS CONTRACTUAL, COMPARATIVE NEGLIGENCE, CONCURRENT NEGLIGENCE, GROSS NEGLIGENCE OR ANY OTHER FORM OF NEGLIGENCE. The provisions above in this Section 6 shall apply only to errors, omissions, and acts occurring during the construction of the Project and not afterwards. Provided, however, that nothing contained in this Contract shall waive the City's, DART's or the State of Texas' defenses or immunities under Section 101.001 et seq. of the Texas Civil Practice and Remedies Code or other applicable statutory or common law. Section 7. IndemniAgainst QPsiQn Dpferts. Approval of the City Engineer or other City, DART, or State of Texas employee, official, consultant, employee, or officer, of any plans, designs or specifications submitted by the Developer under this Contract shall not constitute or be deemed to be a release of the responsibility and liability of the Developer, its 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, DART or the State of Texas 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, DART or State of Texas employee, official, consultant, or officer signifies the City's, DART's or the State of Texas' approval of only the general design concept of the improvements to be constructed. In this connection, the Developer shall, for a period of one (1) year following the City's, DART's and the State of Texas' acceptance of the Project, indemnify and hold harmless the City, DART and the State of Texas, their officials, officers, agents, servants and employees, from any loss, damage, liability or expense on account of damage to property and injuries, including death, to any and all persons which may arise out of the negligence, gross negligence, or intentional misconduct of the engineer with respect to the designs and specifications incorporated into any improvements constructed in accordance therewith, and the Developer shall 0:\contract\Wa[Mart SH26 DART 10-29-02 Dev Contract 4 defend at his own expense any suits or other proceedings brought against the City, DART, and the State of Texas, their officials, officers, agents, servants or employees, or any of them, on account thereof, to pay all expenses and satisfy all judgements which may be incurred by or rendered against them, collectively or individually, personally or in their official capacity arising out of Developer's indemnity obligations contained in this paragraph 7. Section 8. Approval of Plans The Developer agrees that approval of plans and specifications by the City, DART and the State of Texas 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, DART, the State of Texas, nor their 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, DART or the State of Texas 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 �..4. defects in construction undertaken pursuant to such plans and specifications. Section 9. Upon completion of the construction of the Project, the Project and all appurtenances thereto shall become the property of and shall be maintained by the City, DART, and the State of Texas as applicable (subject to the warranties and maintenance bonds of the contractor performing the work). Section 10, Notwithstanding anything in this Contract, nothing herein waives any right of immunity available to the City, DART, or the State of Texas under applicable law. With respect to any indemnity provided for herein from Developer to the City, DART and the State of Texas, Developer does not assume any liability for damages above and beyond what is recoverable against the City, DART or the State of Texas based on immunity or damage limits applicable to each of them. Section 11. This Contract shall not be assignable without the express written consent of City and Developer. O:\contract\WaiMart SH26 DART 10-29-02 Dev Contract St' Executed this Day of 200P. DEVELOPER: Wal-Mart S,�ore-�)Texas, L.P., a Texas Limited Partnership ?VkO V By: Bhannahan Assistant Vice President City Attorney STATE OF't 1L15 COUNTY OF bL &n CITY OF GRAPEVINE, TEXAS Roger Nelson, City Manager Nck:-r� eforeme, the undersigned authority, a notary public, on this day personally appeared —, the &,� V;LP— Pie_�*_,rtbf Wal—Mart Stores Texas, L.P., known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he has the authority to enter into this Contract on behalf of Wal — Mart and that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated. Given under my hand and seal of office this Notary Public Signature ty\ 430_Vy\5 Notary Public Printed or Typed Name My commission expires: -:2 111.061( - 64- — day of Ja-k\Ltv "NOTARY SE of Kim Adams, Notary Public Washington County, State of Arkansas MY Commission Expires 2/1/2011 am o:\contract\WalMart SH26 DART 10-29-02 Dev Contract STATE OF COUNTY OF Before me, the undersigned authority, a notary public, on this day personally appeared known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same for the purposes and consideration therein expressed. 2002. Given under my hand and seal of office this day of Notary Public Signature Notary Public Printed or Typed Name My commission expires: 7 WcontractMalMart SH26 DART 10-29-02 Dev Contract 4 "F 4110 00' a 4 N 75. .N29.75'45 c.-•._ } ',.:._. _. _.._. 10 . 1 .\ 126, 16," N70 22 09"N yW ...,, -.. ._ n. N00 0.7 54 c ... 4 u -M-LRSSI'RU,L x zz - •- p0, Brd00.0600"� 50 45 .. „ ._. ... OWN i v 523?? rg N .'206J2" pan `ti�i *�a7 � d Jry22 q > 4 79 r -271.00' CS— SJO 32 25.'E 5 u2 c� . C.^GRD 270:90 „ SJJ%j'57"E 52. "r6" Dunaway E� ,"� aI»„1>em Associates, Inc. S" Exhibit A La1,a>aJa,n� Scale: I" = 300' Date: January, 2003 Page 1 of 3 LEGAL DESCRIPTION WHEREAS, Wal-Mart Stores Texas, L.P., a Texas limited partnership, is the owner of a 40.939 acre Tract of land in, the Ambrose Foster Survey, Abstract No. 518, situated in the City of Grapevine, Tarrant County, Texas and being that tract described in Volume 15541, Page 162 and also in Volume 15644, Page 393 of the Deed records of Tarrant County, Texas and being more particularly described as follows: BEING a 40.939 acre tract and being all that certain lot, tract, or parcel of land situated in the Ambrose Foster Survey, Abstract No. 518, in the City of Grapevine, Tarrant County, Texas, and being all of Lot 2, Block 1 and all of Lot 2, Block 2 of the Heritage Business Park, according to the plat recorded in Cabinet A, Slide 3472, Being oil of Lot 1, Block 1 of Grapevine Regional Industrial Park, according to the plat recorded in Cabinet A, Slide 1730, Plat Records of Tarrant County, Texas, and being a called 19.047 acre tract described in a deed from MICA HOLDING CORP., a Nevada corporation to Wcl-Mart Stores Texas, L.P., a Texas limited partnership, as recorded in Volume 15541, Page 162, Deed Records of Tarrant County, Texas, and being more particularly described as follows: BEGINNING at a 'A inch iron rod found for the southeast corner of said Lot 2, Block 2 of the Heritage Business Park, for the southwest corner of said Lot 1, Block 1 of the Grapevine Regional Industrial Park, and on the north line of the St. Louis and Southwestern Railroad (a 100 foot right-of-way); THENCE South 59'00'10" West, along the south line of said Lot 2, Block 2 of the Heritage Business Park and the said north line of the St. Louis and Southwestern Railroad, a distance of 1295.44 feet to a 5/8 inch iron rod with a red cap stamped "Clark-Geogram" set for the southwest corner of said Lot 2, Block 2 of the Heritage Business Park, for the southeast corner of Lot 1, Block 2 of the Heritage Business Park, and on the centerline of a creek; THENCE along the southerly most west line of said Lot 2, Block 2 of the Heritage Business Park and the east line of said Lot 1, Block 2 of the Heritage Business Park, the following courses and distances: North 00'03'54" East, a distance of 400.00 feet to a inch iron rod found; North 29'25'45" East, a distance of 126.16 feet to a inch iron rod found; North 00'03'54" East, passing a "'/Z inch iron rod found for the westerly most northwest corner of said Lot 2, Block 2 of the Heritage Business Park, for the northeast corner of said Lot 1, Block 2 of the Heritage Business Park, and on the south line of Industrial Boulevard (a 60 foot right-of-way) at a distance of 130.00 feet, and continuing a total distance of 190.00 feet to a 5/8 inch iron rod with a red cap stamped "Clark Geogram" set for the southwest corner of aforesaid Lot 2, Block 1 of the Heritage Business Park for the southeast corner of Lot 1, Block 1 of the Heritage Business Park; set; North 10'22'09" West, a distance of 132.19 feet to a 5/8 inch iron rod with a red cap stamped "Clark Geogram" North 00'03'54" East, a distance of 175.00 feet to a 5/8 inch iron rod with a red cap stamped "Clark Geogrcm" set; North 05'46'22" West, a distance of 176.97 feet to a '1h inch iron rod found for the northwest corner of aforesaid Lot 2, Block 1, of the Heritage Business Park, for the northeast corner of aforesaid Lot 1, Block 1, of the Heritage Business Park, and on the south line of Lot 1, Block A of the Southlake Bank Place, according to the plat recorded in Volume 388-176, Page 91, Plat Records of Tarrant County, Texas; THENCE North 89'33'49" East, along the north line of said Lot 2, Block 1 of the Heritage Business Park and the said south line of Lot 1, Block A of the Southlake Bank Place, a distance of 324.73 feet to a 1/2 inch iron rod found for the southeast corner of said Lot 1, Block A of the Southiake Bank Place and for the southwest corner of Lot 9A of the Grapevine Industrial Park, according to the Plat recorded in Volume 388-14n, Page 84, Pint Records of Tarrant Co nty, Texas; THENCE South 89'47'30" East, along the said north line of Lot 2, Block 1 of the Heritage Business Park and the south line of said Lot 9A of the Grapevine Industrial Park, a distance of 443.24 feet to a ;� inch iron rcd found for the northeast corner of said Lot 2, Block 1, of the Heritage Business Park, for the southeast corner of said Lot 9A of the Grapevine Industrial Park and on the west line of Industrial Boulevard (60' R.O.W.); Dunaway Engineers Planners Surveyors Associates, Inc. Landscape Architects Exhibit A '',.. S0t MurwMVCW4 Ya 100 Fen Wonn.T%)0t0>M:9,>]35.1,31 Mwa:9>139.3,36 F.>:!t)]]6.)4l] Date: January, 2003 Page 2 of 3 THENCE North 89'53'00" East, passing a 16 inch iron rod found on the east line of said Industrial Boulevard, for the northerly most northwest corner of aforesaid Lot 2, Block 2 of the Heritage Business Pork and for the southwest corner of Lot 7 of the Grapevine Industrial Park at a distance of 60.00 feet, and continuing along the easterly most north line of said Lot 2, Block 2 of the Heritage Business Park and the south line of said Lot 7 of the Grapevine Industrial Park, a total distance of 320.33 feet to a % inch iron rod found on the west line of aforesaid Lot 1, Block 1 of the Grapevine Regional Industrial Park, for the northeast corner of said Lot 2, Block 2 of the Heritage Business Park, and for the southeast corner of the Grapevine Industrial Park according to the plat recorded in Volume 388-140, Page 84, Plat Records of Tarrant County, Texas; THENCE North 00'06'00" West, along the west line of said Lot 1, a distance of 504.48 feet to a 5/8 inch iron rod with a red cap stamped "Clark—Geogrom" set for the northwest corner of said Lot 1, Block 1 of the Grapevine Regional Industrial Park, the southwest corner of a called 4.1678 acre tract described in a deed to Susa Partnership, L.P. as recorded in Volume 13860, Page 174, Deed Records of Tarrant County, Texas, and on the east line of a tract described in a deed to George Dalton, Sr, as recorded in Volume 12642, Page 2163, Deed Records of Tarrant County, Texas; THENCE North 89'56'00" East, along the north line of said Lot 1, Block 1 of the Grapevine Regional Industrial Park, the south line of said 4.1678 acre tract, and the north line of aforesaid 20.638 acre tract, passing a '6 inch iron rod found for the northeast corner of said Lot 1, Block 1 of the Grapevine Regional Industrial Park at a distance of 475.83 feet and continuing a total distance of 843.46 feet to a A inch iron rod found for the northeast corner of said 20.638 acre tract, the southeast corner of said 4.1678 acre tract, and being on the west line of State Highway No. 114 (a variable width R.O.W.) THENCE South 29'54'00" East, along the east line of said 20.638 acre tract and the said west line of State Highway No. 114, a distance of 215.52 feet to a 5/8 inch iron rod with a red cap stamped "Clark Geogram" set; THENCE South 27'51'00" East, continuing along the said east line of the 20.638 acre tract and the said west line of State Highway No. 114, passing a /Z inch iron rod found on the north line of Regional Road (a 60' R.O.W.) at a distance of 160.13 feet, passing a 5/8 inch iron rod with a red cap stamped "Clark—Geogram" set on the south line of said Regional Road at a distance of 220.13 feet, and continuing a total distance of 263.51 feet to a A inch iron rod found at the beginning of a curve to the left; THENCE along the said east line of the 20.638 acre tract, the said west line of State Highway No. 114, and said curve, having a radius of 2884.79 feet, a chord bearing of South 30'32'26" East, and a chord length of 270.90 feet, an arc distance of 271.00 feet to a 'h inch iron rod found; THENCE South 33'13'57" East, along the said east line of the 20.638 acre tract and the said west line of State Highway No. 114, a distance of 52.96 feet to a 5/8 inch iron rod with a red cap stamped "Clark Geogram" set for the southeast corner of said 20.638 acre tract and for the intersection of the sold west line of State Highway No. 114 and the aforesaid north line of the St. Louis and Southwestern Railroad; THENCE South 80'42'29" West, along the south line of said 20.638 acre tract and the said north line of the St. Louis and Southwestern Railroad, a distance of 575.60 feet to a 1112 inch iron rod found; THENCE South 78'38'28" West, continuing along the said south line of the 20.638 acre tract and the said north line of the St. Louis and Southwestern Railroad, a distance of 176.48 feet to 5/8 inch iron rod with a red cap stamped "Clark—Geogram" set; THENCE South 73'21'18" West, along the said south line of the 20.638 acre tract, the said north line of the St. Louis and Southwestern Railroad, and the south line aforesaid Lot 1, c distance of 206.72 feet to a 5/8 inch iron rod with a red cap stamped "Clark—Geogram" set; THENCE South 67'57'48" West, continuing along the said south line of Lot 1, Block 1 of the Grapevine Regional Industrial Park and the said north line of the St. Louis and Southwestern Railroad, a distance of 160.07 feet to a 5/8 inch iron rod found; THENCE South 63'13'15" West, continuinq alonq the said south line of Lot 1. Block 1 of the Grapevine Regional Industrial Park and the said north line of the St. Louis and Southwestern Railroad, c distance of 169.58 feet to the POINT OF BEGINNING and containing a computed area of 1,783,283 square feet or 40.939 acres of land. Dunaway Engineers Planners Surveyors Exhibit A Associates, Inc. Landscape Architects Date: January, 2003 Page 3 of J