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HomeMy WebLinkAboutPR 19729: AGREEMENT WITH TRI-CON, INC. RELOCATION OF A 48" STORM SEWER PIPE P.R. NO. 19729 03/06/17 vrt RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT FOR THE CONSTRUCTION OF PUBLIC IMPROVEMENTS WITH MAGNA PROPERTIES AND TRI-CON, INC., FOR THE RELOCATION OF A 48" STORM SEWER PIPE WHEREAS, Magna Properties and Tri-con, Inc., are the owner and developer of land within the corporate limits of the City, near the intersection of Gulfway Drive and Stn Avenue; and, WHEREAS, the Owner/Developer intends to construct a convenience store/service station facility and related parking and other improvements on the property; and, WHEREAS, a portion of the Property lies within an area that includes an operational 48" storm sewer drain pipe on the aforementioned property; and, WHEREAS, the City has determined that it is in the best interest of the City to relocate the infrastructure; and, WHEREAS, the Owner/Developer has indicated its willingness to share in a portion of the City's costs related to the construction of the public improvements in an amount not to exceed $50,000; and, WHEREAS, the City finds that it is in the best interests of the City to provide for the construction of this project in a timely manner, which will benefit the City and its citizens and encourage and support timely development and diversification of the City's economy and to enter into a cost-sharing agreement for the construction of said improvements with s.pr19729 Magna Properties and Tri-con, Inc., for the completion of the aforementioned project as delineated in the agreement, in substantially the same form as Exhibit "A". NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: THAT the City Council deems it to be in the best interest of the City to enter into an Agreement for the Construction of Public Improvements with Magna Properties and Tri-con, Inc. for the relocation of the operational 48" storm sewer drain pipe. THAT once the construction contract for the Project has gone through the appropriate procurement process and is ready to be properly executed by the City, Owner/Developer agrees to deposit into escrow with the City the cash sum of $50,000 to be held by the City in escrow until the Improvements have been completed and accepted by the City. THAT a copy of the caption of this resolution be spread upon the minutes of the City Council. READ, ADOPTED, AND APPROVED, this day of March, 2017 AD, at a Regular Meeting of the City Council of the City of Port Arthur, Texas by the following vote: AYES: Mayor: Councilmembers: NOES: . s.pr19729 Derrick Ford Freeman, Mayor ATTEST: Sherri Bellard, City Secretary APPROVED AS TO FORM: Valecia R. Tizeno, City Attorney APPROVED FOR ADMINISTRATION: Brian McDougal, City Manager s.pr19729 EXHIBIT "A" s.pr19729 Derrick Ford Freeman, Mayor ATTEST: Sherri Bellard, City Secretary APPROVED AS TO FORM: .c.j_ ___ Valecia R. Tizeno City Attorney APPROVED FOR ADMINISTRATION: Brian McDougal, City Manager EXHIBIT "A" s.pr19623 AGREEMENT FOR THE CONSTRUCTION OF PUBLIC IMPROVEMENTS THE STATE OF TEXAS § COUNTY OF JEFFERSON § This Development Agreement executed as of the day of 2017, between the City of Port Arthur, Texas, ("City") and Magna Properties, Ltd., Owner of certain hereinafter described property located within the City, ("Owner") all collectively referred to as "Parties." WHEREAS, Magna is the owner of approximately acres of land within the corporate limits of the City,which acreage is more particularly described in Exhibit"A,"attached hereto and made a part hereof(the "Property"), and has begun developing the Property near the intersection of Gulfway Drive and 9th Avenue; and WHEREAS, Owner (and its assigns) intends to construct a convenience store/service station facility and related parking and other improvements on the Property; and WHEREAS, a portion of the Property lies within an area that includes an operational 48" storm sewer drain pipe; and WHEREAS, the City has determined that it is in the best interest of the City to relocate the infrastructure in a manner which is depicted in Exhibit"B"; and WHEREAS, a copy of the cost estimate for this project is attached hereto as Exhibit "C"; and WHEREAS, the Owner has indicated its willingness to share in a portion of the City's costs related to the construction of the improvements; and WHEREAS, The City further finds that it's in the best interests of the City to provide for the construction of this project in a timely manner, which will benefit the City and its citizens. NOW THEREFORE, for and in consideration of the premises and mutual obligations, covenants, and benefits hereinafter set forth,the Parties agree as follows: 1 ARTICLE I Definitions The following terms and phrases used in the Agreement shall have the meanings ascribed hereto: 1.01 "Agreement" means this agreement, including any amendments hereto, between the City and Owner. 1.02 "Contractor" shall mean the person, firm, corporation, partnership, association, or other entity awarded the contract by the City for the construction and installation of the Improvements. 1.03 "Force Majeure" shall mean without limitation, pending or threatened litigation, acts of God, war, acts of civil disobedience, fire or other casualty, shortage of materials, adverse weather conditions, [such as, by way of illustration only and not limitations, severe rain storms, below freezing temperatures, hurricanes, or tornadoes] labor action, strikes or similar acts. 1.04 "Improvements"shall mean the relocation of a 48"storm sewer pipe as depicted in Exhibit"B". ARTICLE II Construction of Improvements 2.01 Engineering and Construction of Improvements. A. The Project will be divided into the following two (2) phases: 1. Design, Surveying and Engineering Phase 2. Construction Phase. The City has retained an Engineer to perform the necessary Preliminary Phase Engineering and Design services in connection with the above-referenced project. The Owner is specifically not responsible for any of the costs of Phase 1, the design, surveying and engineering. The Improvements to be made during the Construction will be made according to the Engineering, Specifications. The Construction Phase will be bid in accordance with the requirements of the City of Port Arthur Procurement Policy and the Texas Local Government. B. When the construction contract for the Project has gone through the appropriate procurement process and is ready to be properly executed by the City, Owner agrees to deposit into escrow with the City the cash sum of$50,000.00 (the "Deposit"), to be held by the City in escrow until the Improvements have been completed and accepted by the City. The total 2 participation by the Owner is limited to one-half of the Construction Phase costs only will not exceed the $50,000.00 Deposit. C. The portion of the Deposit required will be transferred by the City from an escrow account into an account used for funding the Improvements within 10 business days after the Improvements have been completed and accepted by the City. D. Any unused portion of the Deposit will be transferred from the escrow account to the Owner within ten(10)business days after the Improvements have been completed and accepted by the City. ARTICLE III City Obligations 3.01 Improvements. The Improvements will be made according to the Engineering Specifications as deliberated in Exhibit "E". City agrees to pay 100% percent of the design engineering costs incurred by the City for the purpose of design and preparation of plans and specifications for the Project. 3.02 Timeline. The Improvements will be made according to the Engineering Specifications and the timeline as delineated in Exhibit "E". The Parties agree that the time is of the essence in the performance of this agreement. ARTICLE IV Miscellaneous Provisions 4.01 Assignment. This Agreement shall be binding and benefit the respective Parties and their legal and successors and shall not be assignable in whole or in party, by any party without first obtaining written consent of the other party; provided, however, the rights and interest of the Owner/Developer hereby may be assigned to, in whole or in part, and shall inure to the benefit of, any person who acquires all or any portion of the Property from the Owner. 4.03 Termination. Either party may terminate its performance under this Agreement if the other party defaults and fails to cure the default after receiving notice of it. Default occurs if party fails to perform one or more of its material duties under this Agreement. If default occurs, the injured party shall deliver a written notice to the defaulting party describing the default and the proposed termination date. The date must be at least thirty (30) days after receipt of the notice. The injured party,at its sole option may amend the proposed termination date to a later date. If the defaulting party cures the default before the proposed termination date,the proposed termination is ineffective. If the defaulting party does not cure the default before the proposed termination date, the injured party may terminate its performance under this Agreement on the termination date. The Director of Utility Services shall act on behalf of the City to notify Owner of a default and to effect termination. 3 4.02 Amendment or Modification. Except as otherwise provided in this Agreement, this Agreement shall be subject to change, amendment or modification only in writing and by the signatures and mutual consent of the Parties. 4.03 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the Parties hereto and shall not be construed to confer any rights upon any third party. 4.04 Remedies Not Exclusive. The rights and remedies contained in this Agreement shall not be exclusive,but shall be cumulative of all rights and remedies now or hereinafter existing,by law or in equity. 4.05 Waiver. The failure of any party to insist in any one or more instances on the performance of any of the terms, covenants or conditions of this Agreement, or to exercise any of its rights,shall not be construed as a waiver or relinquishment of such term,covenant,or condition, or right with respect to further performance. 4.06 Entire Agreement. This Agreement constitutes the entire agreement between the Parties related to the subject matter of this Agreement and supersedes any and all prior agreements, whether oral or written, dealing with the subject matter of this Agreement. 4.07 Venue.This Agreement shall be performable and enforceable in Jefferson County, Texas, and shall be construed in accordance with the law of the State of Texas. 4.08 Severability. If any term or provisions of the Agreement is held to be invalid, void or unenforceable by a court of competent jurisdiction, the remainder of the terms and provisions of this Agreement shall remain in full force and effect and shall not in any way be invalidated, impaired or affected. 4.09 Notices. Any notice required or permitted to be given under this Agreement must be in writing and may be served by (i) depositing the same in the United States mail, addressed to the party to be notified, postage prepaid, registered or certified mail return receipt requested, (ii) by delivering the same in person to such party, or (iii) by overnight of messenger deliver service that retains regular records of delivery and receipt; or (iv) by facsimile; provided a copy of such notice is sent within the(1)day thereafter by another method provided above. The initial addresses if the parties for the purpose of notice under this Agreement shall be as follows: The finds of fact, recitations, and provisions set forth in the preamble to this Agreement are true and are adopted and made a part of the body of this Agreement,binding the parties hereto, as if the same were fully set forth herein. The failure of any party to insist in any one or more instances on the performance of any of the terms, covenants, or conditions of the Agreement, or to exercise any of its rights, shall not 4 be constructed as a waiver of relinquishment of such term, covenant, condition, or right with respect to further performance. None of the terms or provision of this Agreement shall be deemed to create a partnership between or among the parties in their perspective businesses or otherwise, nor shall it cause the parties to be considered joint ventures or members of any join enterprise. SIGNATURES ON FOLLOWING PAGE 5 City: City of Port Arthur cc: Director of Utility Services cc: Public Works Director Developer: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. CITY OF PORT ARTHUR City Manager ATTEST: City Secretary OWNER Magna Properties, Ltd. By: Name: Title: 6