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
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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
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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