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HomeMy WebLinkAboutItem 18 - Perry's SteakhouseMEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: BRUNO RUMBELOW, CITY MANAGER 2 MEETING DATE: JUNE 6, 2017 SUBJECT: DEVELOPER AGREEMENT — JOHN EVAN'S DEVELOPMENT OF PERRY'S STEAKHOUSE AND ADOPT APPROPRIATION ORDINANCE RECOMMENDATION: City Council to consider approval of a developer agreement with John T. Evans Company, Inc. for the cost participation in the development of Perry's Steakhouse and authorizing the City Manager to execute said agreement and take any necessary action. FUNDING SOURCE: Upon approval of the attached appropriation ordinance,funding will be available in account 201-48940-000-0 (Utility Enterprise Capital Fund) in the amount of$165,138.41. BACKGROUND: The tract upon which the Perry's Steakhouse is currently being constructed, Lot 1, Block 1, Grapevine Plaza, No. 2, was sold to John T. Evans Company by the City of Grapevine. The development of this tract requires both water and wastewater line extensions to provide service. The City currently has a waterline connection on its water masterplan along the east side of the Perry's site extending north into the abutting property for a length of approximately 630 LF to an existing waterline. The least difficult route to connect Perry's to the City's existing wastewater system is to parallel the water line for approximately 265 LF to connect to an existing wastewater line in the abutting property to the north. Construction costs for these improvements are $123,138.41, acquiring the easement necessary for the construction at the appraised value of $35,000.00 and $4,000.00 in closing costs. Staff recommends approval. ORDINANCE NO. 2017-033 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS, REVISING THE ADOPTED CAPITAL IMPROVEMENTS BUDGET FOR THE FISCAL YEAR ENDING IN 2017, PROVIDING FOR THE FUNDS, DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council of the City of Grapevine desires to cost participate in the Development of Perry's Steakhouse; and WHEREAS, funding for the development services is available in the Capital Projects General Fund; and WHEREAS, the development of this tract requires both water and wastewater line extensions to provide service; and WHEREAS, all constitutional and statutory prerequisites for the approval of this ordinance have been met, including but not limited to the Open Meetings Act; and WHEREAS, the City Council deems the adoption of this ordinance to be in the best interests of the health, safety, and welfare of the public. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1. That all matters stated in the preamble of this ordinance are true and correct and are incorporated herein by reference as if copied in their entirety. Section 2. That the City Council hereby appropriates $48,814.00 in the Capital Projects General Fund. Section 3. That the City Council authorizes the transfer of$48,814.00 from the Capital Projects General Fund to the Utility Enterprise Capital Fund. Section 4. That the City Council hereby appropriates $165,138.41 in the Utility Enterprise Capital Fund. Section 5. That the terms and provisions of this ordinance shall be deemed to be severable, and that if the validity of any section, subsection,word, sentence or phrase shall be held to be invalid, it shall not affect the remaining part of this ordinance. Section 6. That the fact that the present ordinances and regulations of the City of Grapevine, Texas are inadequate to properly safeguard the health, safety, morals, peace and general welfare of the inhabitants of the City of Grapevine, Texas, creates an emergency for the immediate preservation of the public business, property, health, safety, and general welfare which requires that this ordinance shall take effect immediately from and after its passage and it is accordingly so ordained. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on this the 6th day of June, 2017. APPROVED: William D. Tate Mayor ATTEST: Tara Brooks City Secretary APPROVED AS TO FORM: John F. Boyle, Jr. City Attorney Ordinance No. 2017-033 2 STATE OF TEXAS COUNTY OF TARRANT DEVELOPER'S AGREEMENT CITY OF GRAPEVINE WHEREAS, John T. Evans Company, Incorporated, a Texas Corporation, hereinafter referred to as "Owner," is the owner of land in the City of Grapevine, Tarrant County, Texas, a Texas home-rule City, hereinafter referred to as "City", which land Property") is more specifically described as Grapevine Plaza No. 2, Lot 1, Block 1, City of Grapevine, Tarrant County, Texas, incorporated herein for all purposes; and WHEREAS, the Owner is proposing to develop the Property with a high end restaurant, (the "Project"); and WHEREAS, the "Project" necessitates the construction of an onsite and offsite water line and an offsite wastewater line to serve the development and; WHEREAS, the onsite water line to serve the development of the Property is a 6" line and; WHEREAS, the onsite and offsite water line size needed to improve the City's water network is a 12" line onsite and 8" line offsite and; WHEREAS, the "Project" provides the opportunity to improve the City's water system by connecting to an existing dead end 6" water line, extending a new 12" water line across the Property and continuing an 8" water line north to an existing 8" water line; and WHEREAS, the construction of the connection to the existing 6" dead end water line and construction of the 12" water line onsite and 8" water line offsite improves circulation and water quality of the City's water system and improves fire protection to the Project and the surrounding area; and WHEREAS, the development of the Project further requires the construction of an offsite wastewater line extending from the Property offsite to the north and parallel to the 8" offsite water line to connect with an existing City wastewater line; and WHEREAS, the property upon which the Project is planned was purchased by the Owner from the City of Grapevine; and WHEREAS, it is a common practice for a property owner such as the City, as a seller of raw land, to provide water and wastewater service to the site for the prospective development of the site by the Owner; and O:\contract&interlocal\Developer ContractVJohn Evans Development Agreement 5-26-17 1 WHEREAS, it is advantageous to the City to provide the water and wastewater service utilizing the Owner's existing contractor due to the relatively small scale of the needed improvements; and WHEREAS, the Owner is willing to provide these improvements through its contract or contracts contingent upon the City committing to fund the costs of said improvements; and WHEREAS, the construction of the improvements requires the acquisition of a water and wastewater easement crossing private property north of the Property; and WHEREAS, the City, in its role of seller of raw land with the obligation to provide the water and wastewater facilities to serve the site, is committed to obtain the necessary easement for the improvements; and WHEREAS, the third party owner of the property across which the water and wastewater easement must be obtained has accepted the appraised value for the acquisition of the easement, including attorney's fees and closing costs; and NOW, THEREFORE, the parties to this Agreement, the City and the "Owner", do enter into this Developer Agreement, 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 Agreement as if copied verbatim in their entirety. Section 2. The "Owner" 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 subject water and wastewater line. Section 3. The "Owner" hereby agrees to fund the costs for a registered civil engineer to provide Construction Phase Engineering Services during the construction of the roadway improvements. Section 4. That the City and the Owner agree to the City funding the cost of construction of the water and wastewater lines constructed by the Owner utilizing existing construction contracts at an estimated cost of$ 123,138.41. Section 5. That the City agrees to fund the cost of easement acquisition necessary for the construction of the water and wastewater lines at a cost of $ 39,000 plus closing costs. O:\contract&interlocal\Developer ContractVJohn Evans Development Agreement 5-26-17 2 Section 6. Indemnity Provisions. The "Owner" shall waive all claims, fully release, indemnify, defend and hold harmless the City and all of its 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 error, omission, intentional or negligent act of"Owner", its officers, agents, consultants and employees arising out of or in connection with this Contract, or on or about the property, and "Owner" will, at its own cost and expense, defend and protect the City and all of its officials, officers, agents, consultants and employees in both their public and private capacities, from any and all such claims and demands. Also, "Owner" agrees to and shall indemnify, defend and hold harmless the City and all of its 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, suit and liability of every kind, 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 this Contract on 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"Owners" or any of their officers, officials, agents, consultants and employees, whether said negligence is contractual, comparative negligence, concurrent negligence, gross negligence or any other form of negligence. The City shall be responsible only for the City's primary 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 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. 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 the "Owner" under this Contract shall not constitute or be deemed to be a release of the responsibility and liability of the "Owner", 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 this connection, the "Owners" shall, for a period of one (1) year following the City's acceptance of the Project, indemnify and hold harmless the City, its 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 any defect, deficiency or negligence of the engineer's designs and specifications incorporated into any improvements constructed in accordance therewith, and the "Owners" shall defend at his 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 O:\contract&interlocal\Developer ContractVJohn Evans Development Agreement 5-26-17 3 judgements which may be incurred by or rendered against them, collectively or individually, personally or in their official capacity, in connection herewith. Section 8. Approval of Plans The "Owner" and 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. Section 9. Notwithstanding anything in this Agreement, nothing herein waives any right of immunity available to the City under applicable law. With respect to any indemnity provided for herein from "Owner" to City, "Owner" do not assume any liability for damages above and beyond what is recoverable against the City itself based on immunity or damage limits applicable to the City. Section 10. This Agreement shall not be assignable without the express written consent of City and "Owners." Executed this Day of 2017. OWNER: CITY OF GRAPEVINE, TEXAS John T. Evans Company, Inc. a Texas Corporation By: John T. Evans Bruno Rumbelow, City Manager President APPROVED: City Attorney O:\contract&interlocal\Developer ContractVJohn Evans Development Agreement 5-26-17 4 STATE OF COUNTY OF Before me, 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. Given under my hand and seal of office this day of 2017. Notary Public Signature Notary Public Printed or Typed Name My commission expires: STATE OF COUNTY OF Before me, 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. Given under my hand and seal of office this day of 2017. Notary Public Signature Notary Public Printed or Typed Name My commission expires: O:\contract&interlocal\Developer ContractVJohn Evans Development Agreement 5-26-17 5