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HomeMy WebLinkAboutItem 09 - Silver Oaks MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: BRUNO RUMBELOW, CITY MANAGER2 MEETING DATE: MARCH 6, 2012 SUBJECT: CONSIDER APPROVAL OF A COST SHARING AGREEMENT WITH SILVER OAKS, L.P. FOR EROSION REPAIR ON DENTON CREEK RECOMMENDATION: Staff recommends approval of a cost sharing agreement with Silver Oaks, L.P. for the design and construction of repair of erosion on Denton Creek, adjacent to the Mills Run Trail. The estimated cost for the design is$75,310 and the estimated cost for construction is $521,000. Silver Oaks, L.P. has agreed to split the cost of design and construction for this project. The agreement has been reviewed and approved by the City Attorney and is attached for review. FUNDING SOURCE: Funds appropriated from Storm Water Fund Balance by Council on February 12, 2012. BACKGROUND: The City required the developer of the Silver Oaks Apartments to construct a hike and bike trail adjacent to their property along Denton Creek which is the outflow of Lake Grapevine. Over the past several years, the bank along the trail has eroded in several areas, undermining the hike and bike trail and is now very close to the parking lot of the apartment complex. The estimated cost for the engineering design is estimated at$75,310 and the estimated cost of construction is $521,000. Silver Oaks L.P. has agreed to split the cost of design and construction. Staff recommends approval of the cost sharing agreement with Silver Oaks L.P DE TRAIL AND SLOPE IMPROVEMENT COST SHARING AGREEMENT THE STATE OF TEXAS § COUNTY OF TARRANT § This Agreement is made and entered into by and between the City of Grapevine, Texas (the "City"), and Silver Oaks, L.P. WITNESSETH: WHEREAS, the City and Silver Oaks L.P. are the Grantee and Grantor respectively to the Public Trail Easement dated January 27, 2004 (the "Easement"); and WHEREAS, deterioration and undermining as a result of erosion from surrounding properties have created a danger to the health, safety, and welfare of users of the trail within the Easement (the "Trail"); and WHEREAS, if left uncorrected, the damage to the Trail will require that the Trail be closed to public access and use; and WHEREAS, the City and Silver Oaks L.P. wish to partner together to undertake repairs to the Trail and surrounding areas (the "Project"); and WHEREAS, the City has obtained a design proposal to remedy the issues with the Trail; and WHEREAS, the design, surveying and geotechnical work for the Project is estimated to cost $75,310 and the total costs of the construction is estimated at $600,000; and WHEREAS, the Project will be mutually beneficial to the City and Silver Oaks L.P. WHEREAS, the City and Silver Oaks L.P. have agreed to share in the costs for the Project. NOW THEREFORE, in consideration of the premises and the agreements, TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 1 covenants and promises hereinafter set forth, the sufficiency of which is hereby affirmed, it is agreed as follows: 1. Reaffirmation of the Premises The above premises are agreed to be true and correct and are incorporated into the body of this Agreement as if copied in their entirety. 2. Authority for Agreement Both parties represent and confirm that the signatories to this Agreement have been duly authorized as required to fully bind the respective party to the Agreement, except as otherwise provided for herein. 3. Proiect Costs The City and Silver Oaks L.P. agree to share the total Project costs, including design, engineering, geotechnical work, and construction on an equal basis. The City will enter into one or more agreements with qualified third parties to complete the Project. Such third-party agreements shall be subject to the reasonable TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 2 approval of Silver Oaks, L.P. Silver Oaks, L.P. agrees to provide its proportionate share of each stage of Project costs within ten (10) business days of receipt of notice of same from the City, together with reasonable back-up. Silver Oaks, L.P. also agrees to deposit in escrow with a mutually acceptable escrow holder, one-half the amount of the cost of construction once both parties agree on the construction bid. The escrow must be established prior to the issuance of any contract(s) for construction on the Project. All releases from escrow shall require the mutual agreement of the parties and approval of invoices and lien releases. Silver Oaks, L.P. recognizes that the City reserves the unilateral right to suspend any portion of the Project if Silver Oaks, L.P. fails to timely pay its share of the costs. The City shall, from time to time, make available for review by Silver Oaks, L.P., all of the City's books and recordings pertaining to the Project. If required by Silver Oaks, L.P.'s lender, Silver Oaks, L.P. shall have the right to grant a lien on such escrowed funds to its lender. 4. Successors and Assigns The City and Silver Oaks L.P. each bind themselves, their successors and assigns to perform this Agreement. Neither the City nor Silver Oaks, L.P. will assign, sublet, subcontract or transfer any interest in this Agreement without the written consent of the other party. TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 3 5. Applicable Law This Contract is entered into subject to applicable federal and state law and to the City of Grapevine Code of Ordinances, as they may be amended from time to time, and is subject to Texas and federal laws. Situs of this Contract is agreed to be Tarrant County, Texas, for all purposes, including performance and execution. 6. No Third-Party Beneficiary For purposes of this Agreement, including its intended operation and effect, the parties (the City and Silver Oaks, L.P.) specifically agree and covenant that: (1) the Agreement only affects matters/disputes between the parties to this Agreement, and is in no way intended by the parties to benefit or otherwise affect any third person or entity, notwithstanding the fact that such third person or entities may be in a contractual relationship with the City or Silver Oaks, L.P. or both; and (2) the terms of this Agreement are not intended to release, either by contract or operation of law, any third person or entity from obligations due by them to either the City or Silver Oaks, L.P. TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 4 7. Venue The parties to this Agreement agree and covenant that this Agreement will be enforceable in Irving, Texas; and that if legal action is necessary to enforce this Agreement, exclusive venue will lie in Tarrant County, Texas. 8. Headings The headings of this Agreement are for the convenience of reference only and shall not affect in any manner any of the terms and conditions hereto. 9. Default If either party hereto shall default in the performance of any of the terms or conditions of this Agreement, such defaulting party shall have thirty (30) days after delivery to such defaulting party of written notice of such default within which to cure such default. 10. Legal Construction In case any one (1) or more of the provisions contained in this Agreement TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 5 shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 11. Attorney Fees If any action at law or in equity, including an action for declaratory relief, is brought by either party to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees from the other party, which fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose, and which fees shall be in addition to any other relief which may be awarded. 12. Notice Notices under this Agreement shall be given to the following parties by certified mail, return receipt requested, to the addresses indicated below or at such other addresses as may be designated in writing by the parties from time to time: TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 6 If intended for the City,to: City of Grapevine,Texas City Hall 200 South Main Street Grapevine, Texas 76051-5311 Attn: City Manager With a copy to: Boyle&Lowry L.L.P. 4201 Wingren, Suite 108 Irving,Texas 75062 Attn: Matthew C.G. Boyle If intended for Silver Oaks, L.P.: c/o CWS Apartment Homes LLC 222 West Las Colinas Blvd., Suite 1170E Irving,Texas 75039 Attn: Daniel Ebner With a copy to: Bocarsly Emden Cowan Esmail&Arndt LLP 633 West Fifth Street, 70th Floor Los Angeles, CA 90071 Attn: Aaftab Esmail, Esq. Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter covered in this Agreement. There is no other collateral oral or written Agreement between the parties that in any manner relates to the subject matter of this Agreement, except as provided in any Exhibits attached hereto. 13. Miscellaneous A. Amendment. This Agreement may only be amended by a written agreement executed by both parties. TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 7 B. Legal Construction. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the intention of the parties to this Agreement that in lieu of each provision that is found to be illegal, invalid, or unenforceable, a provision shall be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal,invalid or unenforceable. C. Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument. D. Successors and Assigns. This Agreement may not be assigned without the City's prior written consent. Neither Silver Oaks, L.P. nor its legal representatives or successors in interest shall, by operation of law or otherwise, assign, mortgage, pledge, encumber or otherwise transfer this Agreement or any part hereof, or the interest of Silver Oaks, L.P. under this Agreement without obtaining the City's prior written consent, which may be given or withheld in the City's sole discretion; provided, however, Silver Oaks, L.P. shall have the right to assign this Agreement to any purchase of the Trail and to grant a lien on the escrowed funds to its lender. Any attempted assignment by Silver Oaks, L.P. in violation of the terms and provisions of this Agreement shall be void and shall constitute a material breach of this Agreement. EXECUTED on this r..._w_........................_day of 2012. CITY OF GRAPEVINE TEXAS By: Bruno Rumbelow, City Manager ATTEST: By: City Secretary TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 8 APPROVED AS TO FORM: By: City Attorney EXECUTED the day of ____ , 2012. SILVER OAKS, L.P., A Delaware limited partnership By: GE—CWS Pool 3, LLC A Delaware limited liability company, General Partner By: GE/CWS Pool 3 L.P., A Delaware limited partnership, Sole Member By: CWS Pool 3 GP, LLC A Delaware Limited Liability Company, General Partner By: Name. Mary Ellen Barlow Title: Vice President By: TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 9 CORPORATE ACKNOWLEDGMENT: THE STATE OF TEXAS § COUNTY OF § Before me, the undersigned, on this day personally appeared of.................w � , proved to me through the presentation of a valid Texas Driver's License to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. Mr./Ms. furthermore attested that he/she is signing this in his/her capacity as of and that such capacity makes his/her signature valid to bind the company, Seal: GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of , 2012. My Commission Expires: Notary Public in and for the State of Texas TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 10 CORPORATE ACKNOWLEDGEMENT: THE STATE OF TEXAS § COUNTY OF § Before me the undersigned, on this day personally appeared of proved to me through the presentation of a valid Texas Driver's License to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. Mr./Ms. ...................... __._.... furthermore attested that he/she is signing this in his/her capacity as of and that such capacity makes his/her signature valid to bind the company, Seal: GIVEN UNDER MY HAND AND SEAL OF OFFICE, this_, day of , 2012. My Commission Expires: Notary Public in and for the State of Texas TRAIL AND SLOPE IMPROVEMENT AGREEMENT Page 11