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HomeMy WebLinkAboutItem 10 - Minters Chapel Road Construction ProjectMEMO TO: FROM: MEETING DATE: SUBJECT: RECOMMENDATION: ITEM 0 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL ROGER NELSON, CITY MANAGER L Y FEBRUARY 19, 2002 MINTERS CHAPEL ROAD CONSTRUCTION PROJECT AWARD OF CONTRACT City Council consider awarding the Minters Chapel Road Construction Project to Mike Albert Incorporated in the amount of $ 4,117,082.35, authorize Staff to execute said contract, and take any necessary action. FUNDING SOURCE: Funds are available as follows: Funding Source Account Amount Percent Private Development $ 2,654,653 52.7% 99 G. O. Bond 178-78102-010 $ 2.385.908 47.3% TOTAL $ 5,040,561 100.0% Budget Amount Percent Design $ 419,685 8.3% GeoTech $ 70,000 1.4% Construction $ 4,117,083 82.3% Contingency $ 403.793 8.0% TOTAL BACKGROUND: $ 5,040,561 100.0% The limits of the project are Dallas Road on the north and SH 2114 / 121 on the south. The improvements include: • a new 12" water line • a new wastewater force main extending from the Minter's Chapel Road Lift Station near Cottonwood Branch, February 13, 2002 (11:08AM) • a new wastewater gravity line • a large multi-chamber box culvert extending from SH 114 / 121 to the Cottonwood Branch crossing. This system collects flows from south of SH 114 / 121 and conveys these flows to Cottonwood Branch downstream of the crossing at Minters; Chapel Road • a large multi-chamber box culvert crossing for Cottonwood Branch flowing from west to east • a new four -lane concrete pavement section Bids were opened on November 2, 2001 with nine firms submitting bids. The low bidder on the project was Mike Albert Incorporated with a bid of $ 4,117,082.35. The list of bidders is as follows: Mike Albert Inc. Wright Construction Co. AUI Contractors Rebcon Texas Sterling Constrcution Orval Hall Excavation Tiseo Paving J. L. Steel L.P. Oscar Renda Contractors 4,117,082.35 4,327,049.34 5,332,332.32 5,384,657.35 5,566,980.50 5,610,436.20 5,678,873.75 6,073,198.15 6,082,272.00 Our consultant has reviewed the references of Mike Albert Incorporated and has received positive recommendations from each of them. Staff recommends approval. III a 0:\agenda\02-19-02\MC Road Construction Award February 13, 2002 (11:08AM) STATE OF TEXAS § a, COUNTY OF TARRANT § OWNER'S CONTRACT CITY OF GRAPEVINE WHEREAS, Airport Office Two Joint Venture, a joint venture authorized to do business in the State of Texas, hereinafter referred to as "Owner", and 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 located on the east side of Minters Chapel Road and contains 1,063 ± feet of frontage on Minters Chapel Road, and described in the attached Exhibit "A" which is incorporated herein by reference, and WHEREAS, Future Development in the area of the Subject Property will generate a volume of traffic which the City of Grapevine has stated necessitates the improvements to Minters Chapel Road from Dallas Road to SH 114 / 121 Service Road to provide principal access; and WHEREAS, the City's approved Thoroughfare Plan identifies Minters Chapel Road as a four lane Type E Collector roadway From Dallas Road to the intersection tivith SH 114 / 121 Service Road; and WHEREAS, the Owner and Cityree that the scope of the � p Minters Chapel Road Reconstruction Project (hereinafter the "Project") shall consist of the construction of the roadway from an existing two lane asphalt pavement section to a four lane concrete pavement section with curb and gutter, underground drainage, a major storm drainage trunk line, water and wastewater line construction and adjustments, street lighting, landscaping, irrigation and other appurtenances incidental to the pursuit of said construction. The Iimits of the work shall extend from the intersection of Dallas Road at the north end to the intersection with the SH 114 / 121 Service Road at the south end, including the necessary pavement as described in plans prepared by Nathan D. Maier Consulting Engineers; and WHEFXAAS, the construction of the Project, shall be undertaken by each adjoiriiug property owner and the "City" at a (2/3 two thirds)/(1 /3 one third) cost share as a requirement of the construction of the Project; and WHEREAS, the City, pursuant to its ordinances, acknowledges a degree of responsibility for the construction of the Project to accommodate the traffic volumes projected in the Thoroughfare Plan for this corridor; and WHEREAS, the construction of the Minters Chapel Road roadway improvements shall be undertaken by the City; and WHEREAS, for the purposes of this Owner Contract, the City and the Owner agree that the "Total Cost" shall be defined as the final construction cost of the Project including: Design, Construction, Street Lighting, Irrigation, Landscaping, Material Testing, and ten percent (10%) contingencies; and WHEREAS, the Owner and City agree that the estimated Total Cost of the Project is $ 4,961,409.45; and W EREAS, the Owner agrees that its participation in the cost of the Project is estimated to be $ 605,044; and WHEPEAS, the Owner agrees that the contracting for the construction of said Project shall be by the City of Grapevine in compliance with State of Texas competitive bidding procedures required of Cities throughout the State; and WHEREAS, the Owner and City agree the contract for the construction of the Project shall be exclusively between the City and the contractor and that the Owner skull have no contractual relationship with the contractor within the scope of the City's contract for the construction of this project, and W]HREAS, the Owner agrees that opening of the sealed bids for the construction of this project shall be the responsibility of and conducted by City Officials; and WHERE, AS, the Owner agrees that the construction contractor shall be required to provide a 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 said roadway; 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 (25%) of the total construction cost of said roadway, and shall extend for a period of two years from the date of acceptance of said Project by the City; and V*UEP:EAS, the City shall have the right, at its sole discretion to approve and execute any and all reasonable and necessary Change Orders to the construction, contract that it deems appropriate and necessary for the completion of the Project; and WIEEREAS, the Owner agrees to execute a voluntary lien in favor of the City in the amount of its proportionate share of the Total Cost, established in this Owner's Contract, upon the execution 10167801;1 -2- of this Owner's Contract by the Owner, and prior to the City entering into the construction contract for the Project; and VtWREAS, if the final construction cost for the Project exceeds the projected construction cost, the Owner agrees to the increase of the voluntary lien by its proportionate share of the amount the construction cost exceeds the projected cost; and WHEREAS, if the actual Total Cost for the Project at completion is less than the Projected Total Cost, City agrees to reduce the voluntary lien on Owner's property by the Owner's proportionate share of the balance of the surplus; and NOW, THEREFORE, the parties to this Contract, the City and the Owner, do enter into this Owner's 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: Seefion 1. That all matters stated in the preamble above are found to be true and correct and are incorporated into the body of this Owner's Contract as if copied verbatim in their entirety. Section 2. That tlae City hereby agrees to construct the Project to provide adequate traffic „i capacity to serve the proposed development of Subject Properly. The Project shall comply with City ordinances. Section 3. That the Owner and City agree to share in the Total Cost of the Project, as established in this Owner's Contract. The Owner shall execute a voluntary lien in favor of the City in the amount of its proportionate share of the Total Cost, established in this Owner's Contract, upon the execution of this Owner's Contract by the Owner, and prior to the City entering into the construction contract for the Project Section 4. That the Owner and City agree that the Owner's share of the cost, secured by the voluntary lien, shall become due and payable upon the sale, conveyance, transfer, exchange, or any other change in ownership of the Property, whether it be in whole or in part, or if an application for a Building Permit or any other development permit for any portion of the Property is granted. Section S. That the Owner and City agree that if the Owner has not paid the outstanding balance of his respective cost of the project by the time the construction contract for the Project is awarded by the City, interest will accrue on the outstanding balance beginning on the date of award at an annual rate of 7 % percent until final payment is received by the City from the Owner. Section 6, No certificates of occupancy shall be issued for SubjectProperty until the Owner has provided its share of the funds for the Project. G. 10187801:1 -3- N Section 7. Upon completion of the construction of the Project, the Project and all appurtenances thereto, except land which is deeded to the City by way of easement, shall become the property of the City. . Section S. This Contract shall not be assigned without the express written consent of City and Owner. Executed this 14111 Day of February, 2002. Airport Office Two Joint V U -N %E Partner APPROVED: CM OF GRAPEWNE, TEXAS City Attorney -4- 101 R7801:1 Roger Nelson, City Manager STATE OF NEW YORK. COUNTY OF NEW YORK Before me, a notary public, on this day personally appeared Anthony J. Gostkowski„ known to me to be the person whose name is subscribed to the foregoing document and ackaiowledged to me that he executed the salve for the purposes and consideration therein expressed, and that he is an agent or officer of EH Explorations, Inc., authorized to execute the .foregoing instrument on its behalf. Given under my hand and seal of office this 141 day of February, 2002. f Notary Pi%lic Printed or Typed Name My commission expires: 101M01:1 -5- �01 E.N-OL;;�Ay MARY F. OGOR7.At.Y Notary Public, State of New York No- 01 OG5083071 Certified in New York County Commission Expires Aug -41 ;-00 STATE OF PUTZI-SWI Before me, a notary public, on this day personally appeared knownto 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. (riven under my band and seal of office this day of , 2002. Notary Public Signature Notary Public Printed or Typed Name My commission expires: 10187901.1-6- LIEN CONTRACT �i .tfUl1/ DEED OF TRUST THE STATE OF TEXAS) COUNTY OF TARRANT) THIS LIEN CONTRACT AND DEED OF TRUST (the "CONTRACT") is made and entered into by and between the Airport Office Two Joint Venture hereinafter called the "Owner", and the City of Grapevine, Texas, hereinafter called the City, all of Tarrant County, Texas. WITNESSETH: That Owner, hereby agrees to execute this document in accordance with the terms of an Owner's Contract executed between the parties of even date herewith (hereinafter the "Owner's Contract') and in consideration of the City's agreement to pay the sum of $605,044.00 for construction and development costs for the benefit of certain property situated adjacent to Minters Chapel Road, a portion of which is owned by Owner and described in the attached Exhibit "A" The CITY, pursuant to agreement with Owner, has agreed to advance and pay the above - stated consideration, in accordance with the terms and conditions contained herein and in the above - referenced Owner's Contract which is incorporated herein by reference. Owner has executed and delivered to the CTTY the Owner's Contract for the total sum of $605,044.00 (the "CONTRACT AMOUNT"), as described in the Owner's Contract wherein Owner obligates itself to repay the entire Contract Amount, plus interest. As provided for in the Owner's Contract, in the event the final construction cost for the Project reasonably exceeds the projected construction cost, the Owner agrees that the CONTRACT AMOUNT shall be increased by its proportionate share of the construction costs. Owner agrees to execute any document necessary to secure any reasonable increase in the CONTRACT AMOUNT. To ensure the security and repayment of such CONTRACT AMOUNT, a Subordinate Lien Contract and Deed of Trust is hereby created and granted by Owner to and for the benefit of CITY, the holders ofthe CONTRACT AMOUNT evidenced by such Owner's Contract, upon the Property, and all improvements, additions, fixtures and appurtenances now thereon or hereafter to be placed thereon. To secure and enforce the payment of the CONTRACT AMOUNT and liens hereinabove created, Owner has GRANTED, SOLD AND CONVEYED, and by these presents does GRANT, SELL and CONVEY Lento the CITY's Director of Public Works, as Trustee, the City of Grapevine, Tarrant County, Texas, and his/her substitutes or successors in this trust, all of the Property and all improvements, additions, fixtures and appurtenances now tbereon or hereafter to be placed thereon, 10187817:1 TO IIAVE .AND TO HOLD the aforesaid Property and premises aforesaid, and every part thereof, unto said Trustee or his/her successors, against every person whomsoever lawfully claiming or may claim the same or any part thereof, in trust, however, UPON THE FOLLOWING TRUSTS, TERMS AND CONDITIONS, TO -WIT: Should the CONTRACT AMOUNT hereby secured be paid in full by Owner, then this conveyance shall become null and void and of no further force and effect, and the liens hereby created shall be released by the legal owner and holder thereof. The CONTRACT AMOUNT shall be forgiven in full if and when the terms of the Owner's Contract have been met in full, or the CITY agrees in writing that the functional equivalent of same has taken place. The CITY shall have the right to release this Lien at its discretion at any point of its duration. Owner covenants and agrees as follows: To pay when due all taxes and assessments now existing or hereafter levied or assessed under the laws of the State of Texas upon said Property and to keep the Property in good repair and condition and not to permit or commit any waste thereof. 2_ In the event Owner shall fail to keep the improvements on the Property hereby conveyed in good repair and condition, or to pay promptly when due all taxes and assessments, then the CITY may at its option, but without being required to do so, purchase any tax title thereon, and any sums which may be so used and paid out by the CITY shall bear interest from the dates of such payments at ten percent (7%) per annum and shall be paid by Owner to CITY upon demand, at the place at which the above described note is payable, and shall be deemed apart of the debt hereby secured and recoverable as such in all respects. In addition, interest will begin to accrue on, and be added to the CONTRACT AMOUNT at ten percent (7%) per annum on the date the City awards the bid(s) ,for the Project (as defined in the Owner's Contract) until the CONTRACT AMOUNT is paid in full, or forgiven as provided forherein. 3. The CONTRACT AMOUNT shall become due and payable immediately upon the occurrence of any sale, conveyance, transfer, exchange, or any other change in ownership of the property, whether it be in whole or in party, or if any application for a Building Permit or any other development permit for any portion of the Property is granted. 4. That in the event of any Default as described in the Owner's Contractor any breach of the terms therein contained to be performed by Owner, the CITY may elect to declare the entire principal CONTRACT AMOUNT hereby secured, with all interest accrued hereon and all 10187817;1 other sums hereby secured, immediately due and payable. The Owner hereby expressly waives presentment and demand for payment. It is agreed that in the event of a default hereunder, and reasonable notice and time to cure such default (which shall not be less Than sixty (60) days) has been provided, without such a cure taking place, Trustee, or his/her substitute or successor, or the CITY may institute suit for the collection of said CONTRACT AMOUNT, and for foreclosure of the liens herein created. 6_ The CITY shall have the right of purchase at any foreclosure sale of the Property, being the highest bidder, and to have the amount for which said Property is sold credited on the debt then owing. 7. The CITY in any event is hereby authorized to appoint a substitute Trustee, to act instead of the Trustee named herein without other formality than the designation in writing of a substitute or successor Trustee; and the authority hereby conferred shall extend to the appointment of other successor and substitute Trustees successively until the CONTRACT AMOUNT hereby secured has been paid in full, or until said Property is sold hereunder and each substitute and successor Trustee shall succeed to all of the rights and powers of the original Trustee named herein. 8. Iii the event of a foreclosure sale of the Property herein described, or airy portion thereof, under the terms hereof, Owner, its heirs and assigns, shall forthwith upon the making of such sale surrender and deliver possession of the Property so sold to the purchaser at such sale, and in the event of their failure to do so they shall thereupon from and after the making of such sale be., and continue as, the tenants at will of such purchaser, and in the event of their failure to surrender possession of said Property upon demand, the purchaser, his heirs or assigns, shall be entitled to institute and maintain an action for forcible detainer of said Property in the Justice of the Peace Court in the Justice Precinct in which the said Property is situated. 9. In the event any portion of the CONTRACT AMOUNT herein described cannot be lawfully secured by the liens herein given and created upon the herein described Property, it is agreed that the first payments made on said CONTRACT AMOUNT shall be applied to the discharge of that portion of said CONTRACT AMOUNT which were not lawfully secured. 10. If this instrument is executed by one person or by a corporation, the singular reference to Owner shall be held to include the plural and all of the covenants and agreements herein undertaken to be performed by and the rights conferred upon the respective Owner herein named, shall be binding upon and inure to the benefit of not only said parties respectively, but also their respective heirs, executors, administrators, grantees, successors and assigns. 101878t7:1 � 11. Owner agrees to comply with the terms of the Owner's Contract as a condition of this Contract. 12. If all or any part of the real property and improvements secured by this Contract, or any interest therein, is sold or transferred without the CITY'S prior written consent, excluding the creation of a lieu or encumbrance subordinate to this Contract, the CITY may, at the CITY's option, declare all the sums secured hereby to be immediately due and payable. OWNER HEREBY ACKNOWLEDGES THAT IT HAS RECEIVED A COPY OF TINS CONTRACT. OWNER, AS AFFIANT, FURTHER STATES UNDER OATH THAT UP TO AND INCLUDING THE TIME OF EXECUTION OF TIIIS CONTRACT, NO MATERIALS HAVE BEEN PLACED UPON THE ABOVE-DESCRIBED PROPERTY ANDNO LABORHAS BEEN PERFORMI✓D THEREON IN CONNECTION WITH SAID CONTRACT TO HIS OR ITS KNOWLEDGE AND BELIEF. THIS AFFIDAVIT IS MADE FOR THE PURPOSE OF INDUCING THE CITY TO RELY ON THE FACTS HEREIN STATED .AND ADVANCE FUNDS IN CONNECTION THEREWITH AND ON THE VALIDITY OF THE LIENS CREATED HEREIN. EXECUTED THIS 14"' DAY OF FEBRUARY, 2002. NOTICE TO OWNER: DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS BLAND SPACES. YOU MAY HAVE THE CONTRACT EXAMINED BY YOUR ATTORNEY, AT YOUR OWN EXPENSE, IF YOU WISH. YOU ARE ENTITLED TO A COPY OF THE CONTRACT YOU SIGN. UNDER THE LAW, YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND UNDER CERTAIN CONDITIONS MAY OBTAIN A PARTIAL REFUND OF ANY INTEREST DUE. KEEP THIS CONTRACT TO PROTECT YOUR LEGAL RIGHTS. CITY OF GRAPEVINE, TEXAS La William D. Tate, Mayor ATTEST= Linda Huff City Secretary 10187817:1 AIRPORT OFFICE TWO JOINT VENTURE Ey: EH E. ra'o s, Inc_, Paxtner ATTEST: t` APPROVED AS TO FORM: City Attorney ACKNOWLEDGMENT: The State of New York County of New York Before me, a notary public, on this day personally appeared Anthony J. Gostkowski, 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, and that he is an agent or officer of EH Explorations, Inc., authorized to execute the foregoing instrument on its behalf. Given under my hand and seal o ffice this 1411' day of February, 2002. N ublic Signa e otary Public Printed or Typed Name My commission expires: -4 p G. �7 When recorded please return to: Boyle & Lowry, L.L.P. 4201 Wingren, Suite 108 Irving, Texas 75062 10167817:1 MARY F. OGORZALY (Votary Public, State of New York No. 01 OG5083071 Certified In New York County Commission Expires Aug, 4) Zoo 5 STATE OF TEXAS § ''"°`'' COUNTY OF TARRANT § OWNER CONTRACT CITY OF GRAPEVINE § WHEREAS, Trinity Industries, Inc., a Delaware corporation authorized to do business in the State of Texas, hereinafter referred to as "Owner", 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, Current or Future Development of Subject Property and Abutting Properties will generate a volume of traffic which necessitates the improvements to Minters Chapel Road from its intersection with the SH 121/SH 114 Service Road north to its intersection with Dallas Road, the "Project", to provide principal access; and WHEREAS, the City's approved Thoroughfare Plan identifies Minters Chapel Road as a four (4) lane collector roadway extending from the SH 121/SH 114 Service Road to Dallas Road; and WHEREAS, the construction of the Project shall be undertaken by the Owner °X and the owners of the Abutting Properties and the City at a cost share of one-third (1/3) — City / two-thirds (2/3) — Abutting Properties as a requirement of the construction of the Project; and WHEREAS, the City, pursuant to its ordinances, acknowledges a degree of responsibility to participate in the construction of the Project to accommodate the traffic volumes projected in the Thoroughfare Plan for this corridor; and WHEREAS, the design and construction of the Minters Chapel Road roadway improvements shall be undertaken by the City, and WHEREAS, for the purposes of this Owner Contract, the City has represented to the Owner, and the Owner acknowledges, that the "Total Cost" shall be defined as the final construction cost of the Project including: Design, Construction, Material Testing, Irrigation, Landscaping, Street Lighting, Utility Relocation and ten percent (10%) contingencies; and WHEREAS, the City has represented to the Owner, and the Owner acknowledges, that the scope of the Project shall consist of the reconstruction of the roadway segments to a four lane concrete pavement section with curb and gutter, underground drainage, utility adjustments, street lighting, traffic signalization, landscaping, irrigation and other appurtenances incidental to the pursuit of said construction, and that the limits of the work shall extend from the intersection with the SH 121 / SH 114 Service Road at the south end to the intersection with Dallas Road at the north end of the Project (the "Project Scope"); and WHEREAS, the City has represented to the Owner, and the Owner acknowledges, that the estimated Total Cost of the Project is $4,961,409.45 and that the Project is to be completed with reasonable diligence in accordance with the Construction Contract documents executed between the City and it contractor, and WHEREAS, the Owner and the City agree that the Owner's proportionate share of the Total Cost of the Project shall be as follows: (i) Subject Property $228,099 (ii) Seefried Property 445,928 (iii) J.A. Green Property 295,951 (iv) Creek Crossing 46,562 Owner's Proportionate Share $1,016,540 Less: Credit for Owner's Advance to City for Engineering Costs (419,685) Balance of Owner's Proportionate Share: 596 855 M WHEREAS, the City acknowledges that the Owner has previously sold the Seefried Property, the J.A. Green Property and the Park Place Lexus Property and that, except with respect to the Seefried Property and the J.A. Green Property, the Owner shall have no responsibility for any portion of the Total Cost to be borne by the owners of the Park Place Lexus Property or other Abutting Properties; and WHEREAS, the Owner acknowledges that the contracting for the construction of the Project shall be by the City in compliance with State of Texas competitive bidding procedures required of Cities throughout the State; and WHEREAS, the Owner and City agree the contract for the construction of the Project shall be exclusively between the City and the contractor and that, except as hereinafter provided, the Owner shall have no contractual relationship with the contractor within the scope of the City's contract for the construction of this Project; and WHEREAS, the City agrees that, while the contract for the construction of the Project shall not establish a contractual relationship between the Owner and the contractor, and that the City shall use reasonable efforts to ensure that said contract will make provision for the Owner to receive the benefit of any insurance, waiver of liability and indemnification provided therein by the contractor for the benefit of the City; and 2 WHEREAS, the Owner agrees that opening of the sealed bids for the construction of this Project shall be the responsibility of and conducted by City Officials; and WHEREAS, the Owner acknowledges that the construction contractor shall be required to provide performance, payment and maintenance bonds, and that 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 said roadway; and Said maintenance bond 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 of Grapevine, shall be issued in an amount of twenty-five percent (25%) of the total construction cost of said roadway, and shall extend for a period of two (2) years from the date of acceptance of said roadway improvements by the City; and WHEREAS, the City shall have the right, at its sole discretion, to approve and execute any and all reasonable and necessary Change Orders to the construction contract that it deems appropriate and necessary for the completion of the Project, so long as such Change Orders are within the Project Scope; provided that, if Change Order(s) individually, or in the aggregate, shall result in an increase of more than five percent (5%) of Owner's proportionate share of the Total Cost of the Project, then the City agrees to provide a description of the change(s) and the necessity therefore upon the request of Owner prior to the assessment of such an increase in Owner's share of the costs; and WHEREAS, the Owner agrees to deposit with the City by its check the balance of its proportionate share of the Total Cost, established in this Owner Contract (the "Owner's Costs"), upon the execution of this Owner Contract by the Owner, and prior to the City's entering into the construction contract for the Project; and WHEREAS, the Owner's Costs shall be placed in an interest-bearing account, with interest to accrue to the account and any interest which accrues on said account shall be reserved exclusively for contribution towards the Owner's share of the Project costs. The City shall make draws from the Owner's Costs solely for payment to the contractor of the balance of the Owner's proportionate share of the Total Cost; and WHEREAS, if the final construction cost for the Project exceeds the estimated Total Cost set forth above, the Owner's share of such increase shall be governed by and subject to the terms described above for Change Orders, the Owner agrees to increase its participation by its proportionate share of the amount that the final construction cost exceeds the estimated Total Cost by depositing with the City its ?: proportionate share of the increased cost within ten (10) days of receipt of a detailed invoice from the City; and WHEREAS, if the actual Total Cost for the Project at completion is less than the estimated Total Cost, City agrees to refund to the Owner its proportionate share of the balance of the surplus by delivering said amount to the Owner, with the accrued interest earned thereon based on the City's average rate of return for investments (which accrued interest shall in any event be delivered to the Owner upon completion of the Project), within thirty (30) days of a final determination of the Total Cost and final acceptance of the Project by the City; and NOW, THEREFORE, the parties to this Contract, the City and the Owner, do enter into this Owner 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 Owner's Contract as if copied verbatim in their entirety. Section 2. That the City hereby agrees to construct a roadway facility as herein described, in accordance with the Project Scope and, except as otherwise provided herein, for not more than the Total Cost, in order to provide adequate traffic capacity to serve the Subject Property and the Abutting Properties. The roadway facility shall comply with City ordinances. Section 3. The Owner and City hereby agree to the City's employing a civil engineer registered in the State of Texas to prepare and seal the construction plans of the roadway improvements prior to construction. Section 4. The Owner and City hereby agree to the City's contracting with said registered civil engineer to provide Construction Phase Engineering Services to the City during the construction of the Project. Section 5. The City agrees to construct the Project, and the Owner and City agree to share in the Total Cost of the Project, as established in this Owner Contract. The Owner shall place the Owner's Costs with the City upon the execution of this Owner Contract by the Owner, which Owner's Costs shall be placed in an interest bearing account. Section 6. Hold Harmless Provisions. The parties to this Contract hereby mutually agree to waive all claims, and fully release the other party, and all of its officers, directors, agents, consultants, employees and invitees, from any and all liability, claims, suits, demands or causes of action, including all expenses of litigation rd and/or settlement which may arise by injury to person or damage to property occasioned by error, omission, intentional or negligent act of either party, its officials, officers, agents, contractors, consultants or employees arising out of or in connection with the construction contract for the Project, or on or about the Subject Property or the Abutting Properties, including, without limitation, environmental liability. Nothing contained in this Contract shall waive the City's defenses or immunities under Section 101.001 et seq. of the Texas Civil Practices and Remedies Code or other applicable statutory or common law. Section 7. No further certificates of occupancy shall be issued for Subject Property until the Owner has provided its share of the funds for the Project. Section 8. Upon completion of the construction of the Project, the Project and all appurtenances thereto shall become the property of the City. Section 9. This Contract shall not be assignable without the express written consent of City and the Owner. EXECUTED this 1(+(-k day of 2002. ` TRINITY INDUST ES, (-Z 4 By: Nam U P Title: APPROVED: CITY OF GRAPEVINE, TEXAS City Attorney Roger Nelson, City Manager 5 a STATE OF TEXAS COUNTY OF DALLAS Before me, a notary public, on this day personally appearedi—Dhh LuQ , Vice President of Trinity Industries, Inc., known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same in the capacity stated and for the purposes and consideration therein expressed. Given under my hand and seal of office this I I+Lday of Q 2002. Nq ,. r• rn= �•X: C7 • i� � �F'f'E�{P5 � ° � Notary Public Signature Notary Public Printed or Typed Name My commission expires: .5. STATE OF TEXAS COUNTY OF TARRANT Before me, a notary public, on this day personally appeared Roger Nelson, City Manager for the City of Grapevine, Texas, known to me to be the person whose name is subscribed to the foregoing document and acknowledged to me that he executed the same in the capacity stated and 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: on STATE OF TEXAS § vx 6i1 a , CITY OF GRAPEVINE § DEVELOPER'S CONTRACT WHEREAS, Ltd., a e s ]� mixed ar nership Park Pin,,= r T X Tani �m_n�3, r� , aUt�orlZed ?o dto business in the State of Texas, 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, Current or Future Development of Subject Property will generate a volume of traffic which necessitates the improvements to Minters Chapel Road from its intersection with the SH 121 / SH 114 Service Road north to its intersection with Dallas Road, the "Project", to provide principal access; and WHEREAS, the City's approved Thoroughfare Plan identifies Minters Chapel Road as a four (4) lane collector roadway extending from the SH 121 / SH 114 Service Road to Dallas Road; and WHEREAS, the construction of the Project shall be undertaken by the "Developer" and the "City" at a cost share of (1/3 one third - City)/(2/3 two thirds - Abutting Property Owners) as a requirement of the construction of the proposed q p posed Project; and WHEREAS, the City, pursuant to its ordinances, acknowledges a degree of responsibility to participate in the construction of the Project to accommodate the traffic volumes projected in the Thoroughfare Plan for this corridor; and WHEREAS, the design and construction of the Minters Chapel Road roadway improvements shall be undertaken by the City; and WHEREAS, for the purposes of this Developer Contract, the City and the Developer agree that the "Total Cost" shall be defined as the final construction cost of the Project including: Design, Construction, Material Testing, Irrigation, Landscaping, Street Lighting, Utility Relocation and ten percent (10%) contingencies; and WHEREAS, the Developer and City agree that the scope of the Project shall consist of the reconstruction of the roadway segments to a four lane concrete pavement section with curb and gutter, underground drainage, utility adjustments, street lighting, traffic signalization, landscaping, irrigation and other appurtenances incidental to the pursuit of said construction. The limits of the work shall extend from the intersection with the SH 121 / SH 114 Service Road at the south end to the intersection with Dallas Road j at the north end of the Project, and O::\stan\develpmnt\minters_chapel\ParkPlace_dev_contract 12-31-01 WHEREAS, the Developer and City agree that the estimated Total Cost of the Project is $ 4,961,409.45; and WHEREAS, the Developer agrees that its participation in the cost of the Project shall be $ 553,279; and WHEREAS, the Developer agrees that the contracting for the construction of the Project shall be by the City of Grapevine in compliance with State of Texas competitive bidding procedures required of Cities throughout the State; and WHEREAS, the Developer and City agree the contract for the construction of the Project shall be exclusively between the City and the contractor and that the Developer shall have no contractual relationship with the contractor within the scope of the City's contract for the construction of this project, and WHEREAS, the Developer agrees that opening of the sealed bids for the construction of this project shall be the responsibility of and conducted by City Officials; and WHEREAS, the Developer agrees that the construction contractor shall be required to provide a 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 said roadway; 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 (25%) of the total construction cost of said roadway, and shall extend for a period of two years from the date of acceptance of said roadway improvements by the City; and WHEREAS, the City shall have the right, at its sole discretion to approve and execute any and all reasonable and necessary Change Orders to the construction contract that it deems appropriate and necessary for the completion of the Project; and WHEREAS, the Developer agrees to deposit with the City by certified check its proportionate share of the Total Cost, established in this Developer Contract, upon the execution of this Developer Contract by the Developer, and prior to the City entering into the construction contract for the Project; and WHEREAS, if the final construction cost for the Project exceeds the projected O::\stan\develpmnt\minters_chapel\Park PI ace_dev_contract 12-31-01 2 r`s .4 Urc, 46 r -Q c�"-C-�t`M 1 r� v�. Gco a lcti w c. �+c_ a C}r1��e hen G�� fid construction cosh the Developer agrees to increase its initial participation by their 441C proportionate share of the amount the construction cost exceeds the projected cost by C,q,. depositing with the City its proportionate share of the increased cost within ten (10) days of receipt of a detailed invoice from the City; and WHEREAS, if the actual Total Cost for the Project at completion is less than the Projected Total Cost, City agrees to refund the Developer its proportionate share of the balance of the surplus to the Developer with accrued interest based upon the City's average rate of return for investments within thirty (30) days of a final determination of the Total Cost and final acceptance of the Project by the City; and NOW, THEREFORE, the parties to this Contract, the City and the Developer, do enter into this Developer's 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's Contract as if copied verbatim in their entirety. Section 2. That the City hereby agrees to construct a roadway facility as herein described to provide adequate traffic capacity to serve the proposed development of Subject Property. The roadway facility shall comply with City ordinances. Section 3. The Developer and City hereby agree to the City employing a civil engineer registered in the State of Texas to prepare and seal the construction plans of the roadway improvements prior to construction. Section 4. The Developer and City hereby agree to the City contracting with said registered civil engineer to provide Construction Phase Engineering Services to the City during the construction of the Project. Section 5. That the Developer and City agree to construct the Project and to share in the Total Cost of the Project, as established in this Developer Contract. The Developer shall deposit with the City by certified check their proportionate share of the Total Cost of the Project, established in this Developer Contract, upon the execution of this Developer Contract by the Developer, and prior to the City entering into the construction contract for the Project. Section 6. Indemnity Provisions. The Developer shall waive all claims, fully release, indemnify, defend and hold harmless the City and all of its officials, officers, agents, consultants, employees and invitees 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 error, omission, intentional or negligent act of O::\stan\develpmnt\minters_chapel\ParkPlace_dev_contract 12-31-01 M Developer, its officers, agents, consultants, employees,�invitees, arising out of or in connection with this Contract, or on or about the property, and Developer will, at its own cost and expense, defend and protect the City and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, from any and all such claims and demands. Nothing contained in this Contract shall waive the City's 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. No further certificates of occupancy shall be issued for Subject Property until the Developer has provided its share of the funds for the Project. Section 8. Upon completion of the construction of the Project, the Project and all appurtenances thereto shall become the property of the City. Section 9. This Contract shall not be assigned without the express written consent of City and Developer. Executed this -4th Day of _Kebruary2002. DEVELOPER: - Park Place LX Land Company, No. 1, Ltd. -By: Park Place LX Land Company, General Partner By: Kenneth L. Schnitzer , President (Typed Name of Developer) City Attorney CITY OF GRAPEVINE, TEXAS Roger Nelson, City Manager 0::\stan\develpmnt\mlnters_chapel\ParkPlace—dev—contract 12-31-01 4 STATE OF .'1(214� }s COUNTY OF `Qta,,e,�,.� Before me, a notary public, on this day personally appeared ��� known to me to be the person whose name is subscribe t 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 'yf day of Notary Public Signature `s''; BRETNIDAS WILLIAMSON e< Nota«. PaDlic: State of Texas Nis Conan ssw�t expires 02-22-03 Notary Public Printed or Typed Name My commission expires: 07 — J"j —O 3 STATE OF COUNTY OF Before me, a notary public, on this day personally known to me to be whose name is subscribed to the foregoing document and acknowledged to 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: appeared the person me that he O::\stan\develpmnt\minters_chapel\ParkPlace_dev_contract 12-31-01