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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 NMdminW,TP Projecns1FYWOMContincn[al Sloragc\Agmerncnl(DRAF F) 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 NAAdminlClP PrajousTY200S1Confinental StoragclAgrccrncnl(1*AI^ t) 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 N:1AdminlC1Y T "ject T Y206STonfinental StnragelAgrwment(DRAPTF) 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 N- \AdminICIP 1 nntincntnl SteragclAgrc- ement(IIRAM 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 NAAdminkCIP Into)jmtskrY'20WCunEiizczita1 8turng6Agre- 4=rnt(DRAFT) 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: �o N T- x O qIT <== 4 : a o.• A //\ , . : � y . . . � . ., \ » :« La � � \.. .. \� .. • � � : � � ^ � , � 2 � � c @ c 2 0 Al