Item 4D (2)City of Southlake
MEMORANDUM
February 26, 2008
TO: Shana Yelverton, City Manager
FROM: Steve Polasek, Director of Community Services
SUBJECT: Authorize an agreement with Marcel Bosworth for the relocation of the
Continental Storage Building
Action Requested: City Council authorization to enter into an agreement with Marcel
Bosworth, President of Marine Quest, for the relocation of the
Continental storage building located on 1340 West Perry Circle to the
City Service Center located at 1950 E. Continental.
Background
Information: Marine Quest, Inc., owns property on East Continental adjacent to park
property on West Perry Circle. Marcel Bosworth, president of the
company, proposed that if alternate storage suitable for the needs of the
parks and recreation staff could be obtained, he would be willing to pay
to lease the space for a period of up to three years as well as develop
the existing land as a public park.
The Continental storage building provides 5,000 square feet of storage
for materials ranging from fertilizer and soil amendments for athletic
fields to recreation program materials and decorations. Currently, the
facility is also being used to store City items for auction. Unable to find
space in Southlake that would adequately replace the building, Mr.
Bosworth proposed relocating the existing building to a site determined
by the City within the Service Center on Continental Boulevard.
Marine Quest would dismantle the building, pour a concrete slab,
provide the electric service, replace or repair any damaged elements, re-
assemble and paint the building on the new site, as well as brick the
southern elevation facing Continental. The advantages to this proposal
include improved aesthetics along Continental Boulevard and a
refurbished storage building situated in a more secure location.
Execution of the proposed agreement is contingent upon the Developer
being able to obtain approvals (zoning and plat approval) for an
adjoining development. This item is separate from any park dedication
requirements for his proposed development which would be brought
forward as part of a future developer agreement should the necessary
approvals be obtained.
Financial
Considerations: There are no direct financial considerations related to this request as all
costs associated with the relocation are to be borne by the developer.
Shana Yelverton, City Manager
February 26, 2008
Page 2
Financial
Impact: There is no financial impact anticipated as staff currently mows and
maintains the existing site.
Board Review: The Parks and Recreation Board reviewed Mr. Bosworth's park
dedication request, as well as his proposal to relocate the storage
building, and recommended approval (6 -1) at their September 10, 2007
meeting.
Legal Review: Proposed agreement has been reviewed by the City Attorney.
Alternatives: City Council consideration
Supporting
Documents: Supporting documents include the following items:
• Draft agreement
• Aerial depicting location for placement of the building
Staff
Recommendation: City Council authorization to enter into an agreement with Marcel
Bosworth, President of Marine Quest, for the relocation of the
Continental storage building located on 1340 West Perry Circle to the
City Service Center located at 1950 E. Continental Boulevard.
Shana Yelverton, City Manager
February 26, 2008
Page 3
AGREEMENT
CONTINENTAL STORAGE BUILDING RELOCATION
CITY OF SOUTHLAK
An Agreement between the City of Southlake, Texas, hereinafter referred to as the "City ", and
the undersigned Developer, hereinafter referred to as the "Developer ", for the relocation and
reconstruction of the City storage building currently located at 1340 West Perry Circle.
WHEREAS, the Developer desires to remove an existing City storage building from its
present location and relocate it to a location at the City Service Center located at 1950 E.
Continental Boulevard as desired by the City {hereinafter called "Project"): and
WHEREAS, the relocation of the building will prove beneficial to Moth the Developer and
City by improving the aesthetics of Continental Boulevard and improving the security of the
building; and
WHEREAS, Developer represents that it is willing, contingent upon approval of plans for
the adjoining development, to enlist qualified and capable engineers and contractors at
Developers sole cost to accomplish the project in a timely manner and in accordance with all
applicable local, State, and Federal rules and regulations;
NOW, THEREFORE, the parties, in consideration of the terms and conditions contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, do hereby agree as follows:
1.
Terms and Conditions
A. REMOVAL AND RELOCATION OF BUILDIN
It is agreed and understood that, upon approval of the plans for an adjoining
development, Developer will undertake the Project as provided herein to include but not limited
to the following: dismantle the building, pour a concrete slab, provide electric service, replace or
repair any damaged elements, re- assemble and paint the building on the new site, as well as
brick the southern elevation facing Continental. The parties agree that the plans for an adjoining
development will be approved upon zoning and plat approval by City Council.
B_ EMPLOYMENT OF ENGINEER
It is agreed and understood by the parties hereto that the Developer shall employ a civil
engineer licensed to practice in the State of Texas for the design and preparation of any and all
plans and specifications associated with the slab to be built as part of the Project covered by
this Contract and that all such plans will be reviewed and approved by the City prior to beginning
the Project.
C. AGREEMENT M ANAGEMENT
FROFF. SIONAL SERVICES CONTRACT FAM.3 1 OF A
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Shana Yelverton, City Manager
February 26, 2008
Page 4
The Director of Community Services ( "Director') or his designated representative shall
administer and manage this Agreement on behalf of the City, and Marcel Bosworth or his
designated representative, shall administer and manage this Agreement on behalf of Developer.
D. BONDS
The Developer will present to the City either a cash escrow, Letters of Credit or
performance bond and payment bond acceptable to the City guaranteeing and agreeing to pay
an amount equal to 100% of the value of the Project, and providing for payment to the City of
such amounts, up to the total remaining amounts required for the completion of the Project if the
Developer fails to complete the work within the time frame included in this Contract. All bonds
shall be issued by a Best - rated bonding company. All Letters of Credit must meet the
Requirements for Irrevocable Letter of Credit attached hereto and incorporated herein.
The Developer agrees to furnish to the City maintenance bonds, letters of credit or cash
escrow amounting to 100% of the cost of associated with building the slab portion of the Project.
These maintenance bonds, letters of credit or cash escrow will be for a period of one (1) year
and will be issued prior to the final City acceptance of the Project. The maintenance bonds,
letters of credit or cash escrow will be supplied to the City by the contractors performing the
work, and the City will be named as the beneficiary if the contractors fail to perform any required
maintenance.
Any surety company through which a bond is written shall be a surety company duly
authorized to do business in the State of Texas, provided that the City, through the City
Manager, shall retain the right to reject any surety company as a surety for any work under this
or any other Agreement within the City regardless of such company's authorization to do
business in Texas. Approval by the City shall not be unreasonably withheld or delayed.
E. TIMELINESS OF
business days from the
weather.
F. INSURANCE
SERVICE The Developer shall complete the Project within sixty
start date. Additional days may be added per the City for inclement
(1) insurance. Developer agrees to maintain in full force and effect for the duration of
this Contract and any extensions hereof, at Developer's sole expense, insurance coverage
written by companies approved by the State of Texas and acceptable to City with all policies
being endorsed to provide a waiver of subrogation as to the City. Such coverage shall include
the following types and minimum amounts:
TYPE AMOUNT
Workers Compensation Statutory
and
Employer's Liability $100,0001500,0001100,000
Commercial General Combined Single Limit of
Liability insurance $1,000,000 per Occurrence
PROFFSSTONAL SffRVICFS CONTRACT PAGE 2 OF 6
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Shana Yelverton, City Manager
February 26, 2008
Page 5
Comprehensive Automobile Minimum State Financial
Liability Insurance Responsibility Limits
Professional Liability $500,000 Per Claim
(Errors and Omission) Insurance
(a) Developer shall furnish a completed Insurance Certificate to the City which
shall be completed by an agent authorized to bind the named underwriting companies to
the coverages, limits, and termination provisions required by this Contract.
(b) Developer shall name the City, its officers, employees, and elected
representatives as additional insureds on the Workers Compensation, Employer's
Liability, Commercial General Liability and Comprehensive Automobile insurance
policies.
(c) Developer shall notify the City in the event of any material change in
insurance 'policies required by this Contract, including, but not limited to, changes in
providers, coverage or effective dates, or if such policies are deemed to be
nonrenewable. Developer shall deliver such notice to the City not less than 30 days prior
to the change.
(d) For coverages that are written with claims made policies, the required period of
coverage shall be continuous coverage for the life of the Contract, plus an extended
discovery period of 5 years to begin at the end of the term of the Contract. Should
Developer change insurance providers during this time, the replacement policy shall
include a prior acts provision to eliminate any lapse in coverage.
G. COMPLIANCE WITH LAWS, CHARTERS, AN ORDINANCES
Developer, its agents, employees and subcontractors shall comply with all applicable
federal and state laws, with the Charter and Ordinances of the City, and with all applicable rules
and regulations promulgated by all local, state, and national boards, bureaus and agencies
existing,and published before Effective Date of this Contract. It is acknowledge by bath parties
to this Agreement that, notwithstanding the foregoing, the Developer will not have any
responsibility with regard to zoning, platting, or sit plan submittals associated with the Project.
H. ASSIGNABILITY
This Developer shall not assign this Contract, in whole or in part, without the prior written
consent of the City.
NOTICES
All notices, communications, and reports required or permitted to be delivered under this
Contract shall be personally delivered or mailed by certified mail, return receipt requested, to the
respective parties by depositing the same in the United States Postal Service at the address
PRQrESSIQI+PAI. SFRVIC'ES CON I RAC: f" PAGE 3 OF 6
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Shana Yelverton, City Manager
February 26, 2008
Page 6
shown below, unless and until either party is otherwise notified in writing by the other party at
the following addresses. Notices mailed in accordance with this paragraph shall be deemed
delivered after 5 calendar days of the date mailed. Notices personally delivered shall be
deemed delivered on the day received.
If to the City:
Steve Polasek
Director of Community Services
City of Southlake
400 North White Chapel
Southlake, Texas 76092
(817) 748 -8018
if to Developer:
Marcel Bosworth
President
Marine Quest
1207 South White Chapel, Suite 200
Southlake, Texas 76092
(817) 410 -7450
INDEPENDENT CONTRACTO
In performing work and services under this Contract, Developer is acting as an
independent contractor. No term or provision hereof to be construed as making Developer the
agent, servant, or employee of the City or as creating a partnership or joint venture relationship
between Engineer and the City.
K. INDEMNITY
(1) DEVELOPER AGREES TO INDEMNIFY AND KEEP HARMLESS THE CITY, ITS
OFFICERS, AGENTS AND EMPLOYEES (THE "INDEMNITEES ") FROM AND
AGAINST ALL SUITS, ACTIONS, LIABILITY, OR CLAIMS OF INJURY TO ANY
PERSON OR PERSONS, OR DAMAGES TO ANY PROPERTY BROUGHT OR MADE
FOR OR ON ACCOUNT OF ANY DEATH, INJURIES TO, OR DAMAGES RECEIVED
OR SUSTAINED BY ANY PERSON OR PERSONS OR FOR DAMAGE TO OR LOSS
OF PROPERTY ARISING OUT OF, OR OCCASIONED BY CONTRACTOR'S
INTENTIONAL ANWOR NEGLIGENT ACTS OR OMISSIONS IN CONNECTION WITH
CONTRACTOR'S OPERATIONS; THIS INDEMNIFICATION SHALL APPLY WHETHER
OR NOT THE CITY, ITS AGENTS, OFFICERS OR EMPLOYEES WERE NEGLIGENT.
(2) IT IS THE INTENT OF THE PARTIES BY AGREEMENT TO THIS SECTION K THAT
IF A CLAIM IS MADE IN ANY FORUM AGAINST INDEMNITEES FOR ANY OF THE
REASONS DEFERRED TO IN SECTION K(1), AND UPON RESOLUTION OF THE
CLAIM:
(A) THERE IS NO FINDING BY A COURT OF COMPETENT JURISDICTION
THAT INDEMNITEES WERE NEGLIGENT IN CONNECTION WITH ANY OF
THE REASONS REFERRED TO IN SECTION K(l), ENGINEER SHALL HOLD
INDEMNITEES HARMLESS AND INDEMNIFY THEM FOR ANY DAMAGE,
LOSS, 'EXPENSE, OR LIABILITY RESULTING FROM THE CLAIM, INCLUDING
ALL ATTORNEY'S FEES, COSTS, AND PENALTIES INCURRED; OR
(B) THERE IS A FINDING BY A COURT OF COMPETENT JURISDICTION
THAT ENGINEER WAS NEGLIGENT TO A GREATER DEGREE THAN
INDEMITEES IN CONNECTION WITH ANY OF THE REASONS REFERRED TO
PROFESSIONAL SERVICES CONTRACT PAGE 4 OF G
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Shana Yelverton, City Manager
February 26, 2008
Page 7
IN SECTION K CONTRACTOR SHALL HOLD INDEMNITEES HARMLESS AND
INDEMNIFY THEM FOR ANY [DAMAGE, LOSS, EXPENSE, OR LIABILITY
RESULTING FROM THE CLAIM, INCLUDING ALL ATTORNEYS' FEES,
COSTS, AND PENALTIES.
(3) This section does not waive any governmental immunity available to the City under
Texas law_ This section is not intended to create a cause of action or liability for the
benefit of third parties but is solely for the benefit of the Developer and the City.
(4) if any action, suit or proceeding is brought against the City, its agents and employees,
upon any claim arising out of Developer's operations, City shall give notice in writing to
Developer by registered or certified mail. The City agrees to reasonably cooperate with
Developer in connection with such defense,
(5) Promptly after receipt by an Indemnitee of any claim or notice or of the
commencement of any action, administrative or legal proceeding, Indemnitee shall notify
the Developer in writing of such fact. Developer shall assume the defense thereof with
counsel designated by Developer and reasonably satisfactory to the Indemnitee.
(6) Should an Indemnitee be entitled to indemnification under this Section I hereof as
a result of a claim by a third party, and Developer fails to assume the defense of such
claim, the Indemnitee will, at the expense of Developer, contest (or settle) such third
party claim.
L. VENUE
Any action brought to interpret or enforce the terms of this Contract shall he brought in a
court of competent jurisdiction in Tarrant County, Texas.
M. GOVERNING LAWS
This Contract shall be governed by and construed in accordance with the laws of the
State of Texas regardless of any conflict of law provisions thereof.
N. LEGAL CONSTRUCTION
In case any one or more of the provisions contained in this Contract 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 provision of this Contract, and this Contract shall be
construed as if such invalid, illegal or unenforceable provision had never been contained in this
Contract.
O. CAPTIONS
The captions to the various provisions of this Contract are for informational purposes only
and shall not alter the substance of the terns and conditions of this Contract.
P. SUCCESSORS AND ASSIGNS
PROFESSIONAL SERVICES CONTRACT PAGE 5 OF 6
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Shana Yelverton, City Manager
February 26, 2008
Page 8
This Contract shall be binding upon and insure to the benefit of the parties hereto and
their respective successors and permitted assigns.
0. ENTIRE AGREEMENT
This Contract and the exhibits attached hereto embody the complete agreement of the
parties hereto, superseding all prior or contemporaneous oral or written agreements between
the parties relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereby have executed this Contract in triplicate
originals to be effective on day of 2008.
DEVELOPER:
By.__ Bosworth
CITY OF SOUTHLAKE:
Shana Yelverton, City Manager
Date.
Date:
ATTEST: ATTEST:
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