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HomeMy WebLinkAboutResolution No. 06-088 CITY OF THE COLONY, TEXAS RESOLUTION NO. o6-ilXF' A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER INTO AN IMPROVEMENT CONSTRUCTION AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF THE COLONY AND W AL-MART STORES, INC.; ATTACHING THE APPROVED FORM OF CONTRACT AS EXHIBIT A; AND PROVIDING AN EFFECTIVE DATE NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Council of the City of The Colony, Texas hereby approves the IMPROVEMENT CONSTRUCTION AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF THE COLONY AND W AL-MART STORES, INC. for the purpose of constructing a connecting road between the Wa1-Mart parking lot and Memorial Drive. Section 2. That the Agreement establishes the terms and conditions whereby Wa1-mart shall reimburse the City up $130,000.00 for construction and related expenses of said road. Section 3. Section 4. behalf of the city. Section 5. passage. That a copy of the Agreement is attached hereto as Exhibit A. That the city manager is authorized to execute the Agreement on That this resolution shall take effect immediately from and after its PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this 16th day of October 2006. 1 Dillard, Mayor ity of The Colony, Texas cL~w~ Christie Wilson, TRMC, City Secretary J[l:J:4:;:o, ~-{ .. 9~", .Tt:.~'Q. ()- / '", ,,(,,~ y:- <'c, (:~ \"? ,Ll.J/ . \~:~,% :r . 0 t."' A t 'f.C, I::; I- : 0 ~ '~ .< S -.. I; 1~ .... i iJ 0.00 ",,0,,0 IMPROVEMENT CONSTRUCTION AND MAINTENANCE AGREEMENT STATE OF TEXAS ~ ~ COUNTY OF DENTON ~ This IMPROVEMENT CONSTRUCTION AND MAINTENANCE AGREEMENT (this "Agreement") is made as of the 16th day of October, 2006 (the "Effective Date"), by and between THE CITY OF THE COLONY, TEXAS (the "Citv") and W AL-MART REAL ESTATE BUSINESS TRUST, a Delaware statutory trust (the "Trust"), acting by and through their respective authorized officers. WITNESSETH: WHEREAS, the Wal-Mart owns certain real property located in the City of The Colony, Depton County, Texas (the "Property"); WHEREAS, the City and the Wal-Mart agree that the City shall construct, pursuant to the terms and conditions of this Agreement, an ingress and egress to the Property by way of a public roadway ("Roadwav") located on the Access Property (as defined herein), and a deceleration lane on Memorial Drive, pursuant to the Plans (as defined herein) set forth on Exhibit A attached hereto and incorporated herein for all purposes (collectively the "Public Improvements"); and WHEREAS, as consideration for the City entering into this Agreement, the Wal-Mart agrees to reimburse the City in accordance with the terms and conditions of this Agreement, for the costs and expenses of the construction of the Public Improvements. AGREEMENT: NOW THEREFORE, in consideration of the foregoing, and on the terms and conditions hereinafter set forth, and other valuable consideration the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows: Article I Defmitions Wherever used in this Agreement, the following terms shall have the meanings ascribed to them below: "Access Property" shall mean that certain real property located in Denton County, Texas, and more particularly described on Exhibit B attached hereto and incorporated herein for all purposes. "Q1y" shall mean the City of The Colony, Texas. "Completion of Construction Date" shall mean the date in which the Public Improvements have been substantially completed in accordance with the Plans. PAGE 1 4850-4983.6033.3 80456 "Effective Date" shall mean the date set forth in the introductory paragraph of this Agreement. "Force Majeure" shall mean any contingency or cause beyond the reasonable control of a party including, without limitation, acts of God or the public enemy, war, riot, civil commotion, insurrection, government or de facto governmental action (unless caused by acts of omissions of the party), fires, inclement weather, availability of materials and supplies, availability of services, explosions or floods, strikes, slowdowns or work stoppages. "Plans" shall mean the plans and specifications regarding the construction of the Public Improvements, which plans are attached hereto as Exhibit A and incorporated herein for all purposes. "Public Improvements" shall mean the public roadway as further described on Exhibit A and in the Plans. "Purchase Date" shall mean the date the City acquires fee title ownership of the Access Property pursuant to Section 2.1. Article II Public Improvements 2.1 Acquisition of Access ProDertv. The City agrees to use commercially reasonable efforts to acquire the Access Property. Notwithstanding any terms or conditions to the contrary herein, in no event shall the City pay more than fair market value for the Access Property. In the event the City is unable to acquire access for roadway improvements which may include fee simple title to the Access Property within one-hundred eighty (180) days following the Effective Date, pursuant to the terms and conditions set forth in this Section 2.1, then this Agreement shall terminate and be of no further force or effect. 2.2 ComDletion of Construction. The City covenants and agrees to cause the Completion of Construction Date to occur no later than one hundred eighty (180) days following the Purchase Date, at which time the City shall dedicate the Public Improvements for public roadway purposes. 2.3 Maintenance. The City covenants and agrees to maintain the Public Improvements in good condition and repair. 2.4 Construction Standards. The Public Improvements shall be constructed by the City in accordance with the Plans. 2.5 Reimbursement of Costs. Within thirty (30) days following the Completion of Construction Date and the City providing Wal-Mart itemized invoices of the actual costs and PAGE 2 4850-4983-6033.3 80456 expenses ("Costs") of the construction of the Public Improvements, Wal-Mart shall reimburse the City up to, but not exceeding, $130,000.00 of the Costs, a such Costs are further itemized on Exhibit C and incorporated herein for all purposes. Article III Covenants and Representations 3.1 Covenants of the City. The City covenants and agrees that, for so long as the Wa1-Mart, or any affiliate ofWa1-Mart, owns the Property, or any portion thereof, the City shall not construct a median cut on Memorial Drive at the intersection of the Public Improvements, which would permit a left turn on to the Roadway from Memorial Drive, or a left turn out on to Memorial Drive from the Roadway. Additionally no new curb cut on the south side of Memorial Drive shall be permitted at any point on Memorial Drive from the intersection of the Roadway and Memorial Drive to the intersection of Memorial Drive and F.M. Highway No. 423. IV Miscellaneous 4.1 Bindin2: A2:reement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, successors, affiliates, administrators, executors and assIgns. 4.2 Limitation on Liabilitv. IT IS ACKNOWLEDGED AND AGREED BY THE PARTIES THAT THE TERMS HEREOF ARE NOT INTENDED TO AND SHALL NOT BE DEEMED TO CREATE A PARTNERSHIP OR JOINT VENTURE AMONG THE PARTIES. 4.3 Authorization. Each party represents that it has full capacity and authority to grant all rights and assume all obligations that are granted and assumed under this Agreement. 4.4 Notice. All notices and communications required or permitted to be given hereunder shall be in writing and hand delivered or mailed by certified or registered mail, postage prepaid, or by Federal Express, Airborne Express, or similar overnight delivery service, addressed as follows: If intended for the City, to: With a copy to: Attn: City Manager City of The Colony, Texas 6800 Main Street The Colony, Texas 75056 Facsimile: (972) 624-2312 Robert E. Hager Nichols, Jackson, Dillard, Hager & Smith, LLP 1800 Lincoln Plaza, 500 N. Akard Dallas, Texas 75201 Facsimile: (214) 965-0010 PAGE 3 4850-4983-6033.3 80456 If intended for Wa1-Mart: With a copy to: Wal-Mart Stores, Inc. Attn: Real Estate Management Dept. 9384 2001 SE 10th Street Bentonville, AR 72716-0550 Notice shall be deemed to have been given upon receipt or refusal. Terry W. Pool, Esq. Kutak Rock LLP 214 West Dickson Fayetteville, AR 72701 4.5 Entire A2:reement. This Agreement is the entire agreement between the parties with respect to the subject matter covered in this Agreement. There are no other collateral oral or written agreements between the parties that in any manner relate to the subject matter of this Agreement, except as provided in any exhibits attached hereto. 4.6 Governin2: Law. This Agreement shall be governed by the laws of the State of Texas and venue for any action concerning this Agreement shall be in the State District Court of Denton County, Texas. The parties agree to submit to the jurisdiction of said court. 4.7 Amendment. This Agreement may be amended only by the mutual written agreement of the parties. 4.8 Le2:al Construction. In the event anyone 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 unenforceabi1ity 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 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. 4.9 Recitals. The recitals to this Agreement are incorporated herein. 4.10 CounterDarts. 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 (1) and the same instrument. 4.11 Exhibits. Any exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. 4.12 Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the termination of this Agreement shall survive termination. [Remainder of Page Left Blank; Signature Page Follows.] PAGE 4 4850-4983-6033.3 80456 . IN WITNESS WHEREOF, the parties hereto have executed this Agreement by each of their duly authorized representatives on the date first above written. CITY OF THE COLONY, TEXAS By: g~~ Dale Cheatham, City Manager WAL-M~RT REAL ESTATE BUSINESS TRUST, A DELAWA' STATUTORY TRUST By: Name: Title: f(O ~~prov~a' terms only WI\L-MI\*f~EPT Oate:l 10 PAGE 5 4850-4983-6033.3 80456 -~' E"xlt,bif ... ., A '.., ~';." .:-", r :t )"~ J" , ~: .... ~. .', ., .. <t-'" <",' JII"'", . '" ...... !< .... .,- ! ,. VZ' FJ.R. '/eAP c.... SSIlH FII WV WM pp GW WMIl TPEO SOMll FCP TCS FOC DAD.C.T. D.R.o.C.T. P.R.D.C.T. TXDOT -TEL- -UGE- -OHE - -30"W- ~x-x- MB "'--. mLET MARKET STREET (60' R,O.W,) (CAB, V, PG. 730-732) f=;<hib if f::j .~ NORTH o c o ~ )-- -.... , , , , l'! ~ " " LEGEND: V~L.~~S~~.. R~.,~~ CONTROL IIOtlJMENT SA,.-rAflY SEWER MANHOLE: ~ HYDFlANT WATER VAL.VE WATER METER POWER POL.E GUY WIRE WATER MANHOlE TELEPHOhE PEDESTAL STORM DFlAIN J.IAHHOl.E FENCE CORNER POST TaEPIiONE CASL.E SIGN FeER OPTIC CABlE DfED RECOFIDS DALLAS COlJNTY TEXAS DEED RECORDS DENTON COl.tITY TEXAS PLAT RECORDS DENTON COUNTY TEXAS TEXAS DEPARTMENT OF TRANSPORTATION TnEPIlONE LINE l.KlERGROUtCl ELECTRIC LINE OVERHEAD ELECTRIC LIE WATER lINE FENCE SVR~ GECO~ NO. 533 fI flEV..;:",tC'f . ;UJS'Jl"> Ii= 19'24'33' R= 985.00' T= 168.45' L= 333.61' CB=N34'17'22'E CD=332.08' / .#;:., , , , , :i '\2.'\ \,\\G\'\~~ 0 ~)O S:t p. \~ />ilL'- ~\\J':~G'- OOB l~ I<l'-'.,,- ~19;;'C 1, ~oL'J"' \J It v DENTON COUNTY FRESH WATER SUPPLY OISTRICT EASEMENT. <VOL. 1202. PG. 9B31 " %'F,J,R,WI CARTER &; BURGESS CAP BEARS S09'01'23'E. 0,25' pp BEARS 58Z'OB'06'W.0.44' (OWNER) COLONY 34. L TO. e.c. .2003-R0047001 D.R.D.C.T. 13.43 ACRES , " " , /,'1 " ' " I " , " I '" II/C'oI /i::?/~ //~!g I ':Z'I-' II~I'" i,'~/~ " , /i>-:~ i :~IQ: :/~/~ i /></5 /iM/~ //8/ti ,,!t!,~ I'x/~ II 10 II J;J: II I~ 20' DENTON COUNTY ELECTRIC COOP INC "I VOLUME 2493. PAGE 550 D.R.D.C.T: .~_ VOLUME 401. PAGE 273 D.R.D.C.T. " ! //1 " , If I L.J II I ~ IJ 1-.1 // / ~ I I I Q: II ,;) /1 I(/) II I L.J II / ~ // j ~ //jg // ! ~ "U " , " 30' DENTON COUNTY ELECTRIC COOP. INC.__/,' ; VOLUME 447. PAGE 529 D.R.D.C.T. " ,_ VOLUME 420, PAGE 29 D.R.D.C. T. i i I " , " I " , " J " , " I " , // / W AL MART ADDITION CABINET T. SLIDE 154 P.R.D.C.T. Notes: l ~~, SCALE IN FEET SCALE: 1" -100' 1.> The basis of bearings is the Northwest line of WoH.lart Addition, on Addition to the City of The Colony, recorded in Cabinet T, Slide 154, Map Records of Denton County, Texas. 2,) ynderground utilities shown on this survey ore based on plans and hove not been field tied. Those shown may not reflect on of the underground utilities adjacent to or serving th~ property. 3.) ThiS survey was prepared without the benefit of a title commitment. !y~ LEGAL DESCRIPTION 7.165 acre tract BEING 0 tract of land situated in the H. Hedgeco)( Survey, Abstract No. 533 in the City of The ~~~Ortb~~~t~~c~~~:JY in T ~~~~t;ngl:rtin2e~0~~t ~l ri~~~o~ag~u~t~o~~O~e3_~~ot 7~"ote::d t~ej~~IOny more particularly described os follows: BEGINNING at 1I2-inch found iron rod with 0 cap marked "HALFF &r ASSOC"INC," (hereafter t~~~~~~~dtoth~s ~~~:~rl~a~~~ ~ftn,ee i~~f_sM~:Io~~~~~e a~O~~hc~~~~~lrn Iig~b~~t~~ s~J~07~4~4, LTD. P.R.D.C.T., said point being in the southeasterly line of MemorialDrive (a 100-foot right-of- way). os dedicated by FtnalPlot recorded in Cabinet V, Page 730-732. P.R.D.C.T.; THENCE South 24 degrees 35 minutes 05 seconds West, departing said Memorial Drive right- ~~idw~al~Mar~n~~~tj~~, ~hedi:t~~~:a~~e1~8~~;6 o:e:ri~o C~11/~_~~h L J~~~a~~na~~dt~t;e;~pli%r o~orner: THENCE North 65 degrees 24 minutes 55 seconds West, deporting said southeasterly nne and said west line, a distance of 208.81 feet to a 1/2-lnch found iron rod with cop for corner: THENCE North 41 degrees 43 minutes 12 seconds West, distance of 93.25 feet to 0 t/2-inch found iron rod with cap for carner, said point being the northwesterly line of said Colony 34, LTD. tract and the southeasterly right-at-way line of said Memorial Drive, and being the beginning of a non-tangent circular curve to the Jeft, having a radius of 985.00 feet. and whose chord bears North 34 degrees 17 minutes 22 seconds East, 0 distance of 332.05 feeti THENCE Northeasterly, along the northwesterly line, the southeasterly right-Of-way line and along said curve to the left. throu~h a central angle of 19 degrees 24 minutes 33 seconds, an arc distance of 333.67 feet to a 1I2-lnch found iron rod with cop for the point of tangency; THENCE North 24 degrees 35 minutes 05 seconds East. conti\uing alonQ said northwesterly line and southeasterly right-of-way line, a distance of 499.54 feet to a 1/2~....ch found iron rod with cap for 0 point of curvature of 0 circular curve to the right, having a radius of 595.69 feet, and whose chord bears North 43 degrees 00 minutes 57 seconds East, a distance of 566.37 feet; THENCE Northeasterly. continuing along said northwesterly line and southeasterly right-af-way line and along said curve to the right, through a central angle of 36 degrees 51 minutes 43 seconds, on arc distance of 576,25 feet to (I 1/2-inch found iron rod with cap for the point of tangenc)'. ~~5Ns~~t~~~~~e~l~ dri~h~~~f..z:Qy1~~~e~ ~i~t::;:n~fs 9~~~~' f;~~t~~ui~~e a~~Tsab} ~Em:NI~~rIY Mne AND CONT~ING 312.104 square feet or 7.165 acres of land. more or less. SURVEYOR'S CERTIFICATE ~~~ L~~~.e~~~n~~y R~t~~e:egoro~~fet~~na~~f1~iss~~:~~r s~~hvee;ISa~de{h~'~r~~~~~: ~:~~~~~io~o s;tlf~~th hereon were prepared from an actualon-the-ground survey of the reol property (the "Property") described in the field notes on this plot of survey; (b) such survey was conducted by the Surveyor, or under his direction; (c) 011 monuments shown hereon actually existed on the date of survey, and the location. size and type of material thereof ore correctly shown; (d) except os shown hereon there are no observable encroachments on to the Property or observable protrusions therefrom, there are no observable easements or rightS-Of-way either burdening or benefitmg the Property, and there ore no obserVable discrepancies, confUcts. shortages in area or boundary line conflicts. <el the Property has apparent access to and from 0 public roadway. (f) the boundaries, dimensions and other details shown hereon are shown to the appropriate accuracy standards of the Manual of Practice for ~~~~in~~~~:Yi~~r~:t ~:;~~ib~~9~~r:~n ~ie~a~fhi~ Z~~eC~~~~~~s~~~~~rY~s ~g~i~at~dap~~C~~e ~~~}~~c~:n~~'t: e;:ril ~~~9~~,o~~0~~~6~h~e~; ~~o~ el~:~r~~~r::~~y M~n~~:~t4~~~~~59 Zone "X" (unshaded) is defined os "Areas determined to be outside 500~yeor floodplain." The surveyor utmzed the above referenced flood plain Information for this determination and the surveyor does not certify that revised flood plain information has or has not been published by the FederalEmergency Management Agency or some other source. ",o,J~~ I~OF ..0,. ~"'1\~..,.....:r:.:, ~ SURVEYOR ,f~~~~~~; ::f.:.:~~S,,:~', \\%J~iMJ~~~" ~L' J. t~/ OUG /oS A. CALHOUN REGISTERED PROFESSIONAL LAND TEXAS NO, 5619 BOUNDARY SURVEY OF 7.165 ACRES SITUATED IN THE THE H.HEDGECOX SURVEY. ABSTRACT NO. 533 CITY OF THE COLONY. DENTON COUNTY, TEXAS FOR CITY OF THE COLONY PREPARED BY HaIff Associates, Inc. ENGINEERS. ARCHITECTS. SCIENTISTS' PLANNERS. SURVEYORS 4000 FOSSIL CREEK BLVD. - FORT WORTH, TEXAS 76137 SCALE. 1'=100' AVO. 24019 OCTOBER. 2006 "'''''''_."7n\ r-n,..., ...__\ "......_".,,,...,,,,. ..__ n......_ ..___~-.n ...__ v. ..",,~. -'__ , Exhibit "c" Estimated Cost to Build Roadway into Wal-Mart Parking Lot Engineering Cost $ 23,000 Construction: 90,000 Roadway and right-turn Lane Legal and Adm. Expenses 2,000 Contingency 15,000 Total Cost $ 130,000 The cost breakdowns are provided for budgeting purposes only and are not intended to represent a specific budget for each lump sum task. Budget amounts will be reallocated among tasks as necessarily determined.