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HomeMy WebLinkAboutC2009-068 - 2/24/2009 - ApprovedEXTRA PAVEMENT DEPTH CONSTRUCTION AND REIMBURSEMENT AGREEMENT THE STATE OF TEXAS COUNTY OF NUECES This Extra Pavement Depth Construction and Reimbursement Agreement ( "Agreement ") is entered into between the City of Corpus Christi ( "City "), a Texas home -rule municipality, P.O. Box 9277, Corpus Christi, Texas, 78469 -9277, Corpus Christi, Texas, 78469 -9277, and Extreme Homes of Texas, LLC, a Texas limited liability corporation, 3826 Apollo, Corpus Christi, Texas 78413 ( "Developer"). WHEREAS, Developer in compliance with the City Platting Ordinance, has filed a plat, approved by the Planning Commission on July 25, 2007, to develop a tract of land of approximately 12.587 acres called Maple Hills Unit 5 Subdivision ( "Development") east McKenzie Road and south of Up River Road, as shown in the attached Exhibit 1; WHEREAS, under the Platting Ordinance, the Developer is responsible for construction of Extra Pavement Depth ( "Extra Pavement Depth "); WHEREAS, under the Platting Ordinance, the Developer is eligible for reimbursement of the Developer's costs for the construction of the Extra Pavement Depth above that of a Residential Collector Street cross section; WHEREAS, it is to the best interest of the City that the Extra Pavement Depth be constructed; WHEREAS, Resolution No. 026869 authorized the acceptance of applications to be eligible for reimbursement in the future when funds become available and are appropriated by City Council; and WHEREAS, Developer has submitted an application for reimbursement of the costs of installing the Extra Pavement Depth (Exhibit 2); NOW, THEREFORE, for and in consideration of the mutual covenants in this Agreement, the parties do covenant and agree as follows: 1. REQUIRED CONSTRUCTION The Developer shall construct the Extra Pavement Depth, in compliance with the City's Platting Ordinance and under the plans and specifications approved by the Development Services Engineer. 2009 -068 M2009 -051 02/24/09 Exteme Homes of Texas 2. PLANS AND SPECIFICATIONS a. The Developer shall contract with a professional engineer, acceptable to the City's Development Services Engineer, to prepare plans and specifications for the Extra Pavement Depth, as shown in Exhibit 3, with the following basic design: 1. Install 5,587 square yards of 10 inch Lime Stabilized Subgrade 2. Install 4,652 square yards of 8 inch Caliche Base 3. Install 4,652 square yards of Prime Coat 4. Install 4,652 square yards of 2 inch Hot Mix Asphaltic Concrete Pavement b. The Extra Pavement Depth must include Wood Creek Drive, beginning at the connection of Wood Creek Drive and Up River Road at the north property line of Maple Hills Unit 5 and extend to the south through the intersection of Wood Creek Drive and Creek View Drive; then along Creek View Drive, west to the limits of Maple Hills Unit 5. c. The plans and specifications must comply with City Standard Specifications and Construction Details. d. Before the Developer starts construction the plans and specification must be approved by the City's Development Services Engineer. 3. SITE IMPROVEMENTS. Prior to the start of construction of the Extra Pavement Depth, Developer shall acquire and dedicate to the City the required street rights -of -way ( "Rights -of- Way"), if necessary for the completion of the Extra Pavement Depth. If any of the property needed for the Rights -of -Way is owned by a third party and Developer is unable to acquire the Rights -of -Way through reasonable efforts, then the City will use its powers of eminent domain to acquire the Rights -of -Way. 4. PLATTING FEES. (not applicable). 5. DEVELOPER AWARD CONTRACT FOR IMPROVEMENTS. Developer shall award a contract and complete the Extra Pavement Depth, under the approved plans and specifications, by May 10, 2009. 6. TIME IS OF THE ESSENCE. Time is of the essence in the performance of this contract. 7. PROMPT AND GOOD FAITH ACTIONS. The parties shall act promptly and in good faith in performing their duties or obligations under this Agreement. If this Agreement calls for review or inspections by the City, then the City's reviews or inspections must be completed thoroughly and promptly. 8. DEFAULT. The following events shall constitute default: 1. Developer fails to engage a professional engineer for the preparation of plans and specifications by the 10th calendar day after the date of approval by City Council. 2. Developer's professional engineer fails to submit the plans and specifications to the City's Director of Engineering Services by the 60th calendar day after the date of approval by City Council. 3. Developer fails to award a contract for the construction of the project, according to the approved plans and specifications, by the 90th calendar day after the date of approval by City Council. 4. Developer's contractor does not reasonably pursue construction of the project under the approved plans and specifications. 5. Developer's contractor fails to complete construction of the project, under the approved plans and specifications, on or before May 10, 2009. 6. Either the City or Developer otherwise fails to comply with its duties and obligations under this Agreement. 9. NOTICE AND CURE. a. In the event of a default by either party under this agreement, the non - defaulting party shall deliver notice of the default, in writing, to the defaulting party stating, in detail the nature of the default and the requirements to cure such default. b. After delivery of the default notice, the defaulting party has 15 business days from the delivery of the default notice ( "Cure Period ") to cure the default. c. In the event the default is not cured by the defaulting party within the Cure Period, then the non - defaulting party may pursue its remedies in this section. d. Should Developer fail to perform any obligation or duty of this agreement, the City shall give notice to Developer, at the address stated above, of the need to perform the obligation or duty, and should Developer fail to perform the required obligation or duty within 15 days of receipt of the notice, the City may perform the obligation or duty, charging the cost of such performance to Developer by reducing the reimbursement amount due Developer. e. In the event of an uncured default by the Developer, after the appropriate notice and cure period, the City has all its common law remedies and the City may: 1. Terminate this Agreement after the required notice and opportunity to cure the default. 2. Refuse to record a related plat or issue any certificate of occupancy for any structure to be served by the project. 3. Perform any obligation or duty of the Developer under this agreement and charge the cost of such performance to Developer. Developer shall pay to City the reasonable and necessary cost of the performance within 30 days from the date Developer receives notice of the cost of performance. In the event that Developer pays the City under the preceding sentence, and is not otherwise in default under this Agreement, then the Agreement shall be considered in effect and no longer in default. f. In the event of an uncured default by the City after the appropriate notice and cure period, the Developer has all its remedies at law or equity for such default. 10. FORCE MAJEURE. a. The term "force majeure" as employed in this Agreement means and refers to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; insurrections; riots; epidemic; landslides; lightning; earthquakes; fires; hurricanes; storms; floods; washouts; droughts; arrests; civil disturbances; explosions; or other causes not reasonably within the control of the party claiming the inability. b. If, by reason of force majeure, either party is rendered wholly or partially unable to carry out its obligations under this Agreement, then the party shall give written notice of the full particulars of the force majeure to the other party within ten (10) business days after the occurrence or waive the right to claim it as a justifiable reason for delay. The obligations of the party giving the required notice, to the extent effected by the force majeure, are suspended during the continuance of the inability claimed, but for no longer period, and the party shall endeavor to remove or overcome such inability with all reasonable dispatch. 11. NOTICES. a. Any notice or other communication required or permitted to be given under this Agreement must be given to the other Party in writing at the following address: 1. If to the Developer: Extreme Homes of Texas, LLC 3826 Apollo Corpus Christi, Texas 78413 2. If to the City: City of Corpus Christi 1201 Leopard Street (78401) P. O. Box 9277 Corpus Christi, Texas 78469 ATTN: Assistant City Manager Development Services b. Notice required by the paragraph may be by United States Postal Service, First Class Mail, Certified, Return Receipt Requested, postage prepaid; by a commercial delivery service that provides proof of delivery, delivery prepaid; or by personal delivery. c. Either party may change of address for notices by giving notice of the change under the provisions of this section. 12. THIRD -PARTY BENEFICIARY. Developer's contracts with the professional engineer for the preparation of the plans and specifications for the construction of the project, contracts for testing services, and with the contractor for the construction of the project must provide that the City is a third party beneficiary of each contract. 13. PERFORMANCE AND PAYMENT BONDS. Developer shall require its contractor for the construction of the project, before beginning the work, to execute with Developer and the City a performance bond if the contract is in excess of $100,000 and a payment bond if the contract is in excess of $25,000. The performance and payment bond must comply with Texas Government Code, Chapter 2253 and must be in the form and substance as attached to this Agreement. 14. WARRANTY. Developer shall fully warranty the workmanship of and function of the Extra Pavement Depth for a period of one year from and after the date of acceptance of the facilities by the City Engineer. 15. REIMBURSEMENT. a. Subject to the appropriation of funds, the City will reimburse the Developer 100% of the reasonable cost of the Extra Pavement Depth, not to exceed $18,911.40. See attached cost estimate (Exhibit 4). b. The City agrees to reimburse the Developer on a monthly basis upon invoicing for work performed. The reimbursement will be made no later than 30- days from the date of the invoice. Developer shall submit all required performance bonds and proof of required insurance under the provisions of this Agreement. c. To be eligible for reimbursement, the work completed in a good and workmanlike manner, and must have been inspected and accepted by the City. The City agrees to conduct periodic inspections and approve the progress of the work at key points during construction. d. In the event that this Agreement is terminated by the City at a time when there has been a partial completion and partial payment for the improvements, then the City shall only reimburse Developer for its costs that were legitimately incurred towards the completion of the improvements that have been inspected and accepted by the City up to the time that there is an uncured default by the Developer. 16. INDEMNIFICATION. Developer shall indemnify and hold harmless the City, its agents, officers, and employees ( "Indemnitees ") from all suits, actions, or claims and from all liability for any and all injuries or damages sustained by any person, including without limitation workers compensation, personal injury or death, arising from or incident to the construction of the Extra Pavement Depth by the Developer. 17. COVENANT RUNNING WITH THE LAND. This Agreement is a covenant running with the land, Maple Hills Unit 5, a subdivision in Nueces County, Texas, and must be recorded in the Official Public Records of Nueces County, Texas. The duties, rights, and obligations of the Agreement are binding on and inure to the benefit of the Developer's successors or assigns. 18. DISCLOSURE OF OWNERSHIP INTERESTS. Developer further agrees, in compliance with the City Ordinance No. 17110, to complete, as part of this Agreement, the Disclosure of Ownership interests form attached hereto as Exhibit 5. 19. EFFECTIVE DATE. This agreement becomes effective and is binding upon and inures to the benefit of the City and Developer, and their respective heirs, successors, and assigns from and after the date of execution by all parties. 20. AUTHORITY. The person signing this Agreement on behalf of the parties represents, warrants, and guarantees that they have authority to act on behalf of the party and make this Agreement binding and enforceable b their signature. EXECUTED IN DUPLICATE originals, this a I day of 2009. ATTEST: CHRISTI Armando Chapa City Secretary THE CITY OF CORPUS By: 'Angel R. Escobar City Manager APPROVED AS TO FORM: /J14day of /2 6n/4'7 , 2009 R. y Reining / Fi st Assistan City Attorney for the City Attorney THE STATE OF TEXAS COUNTY OF NUECES 1M039 -0SI AUTHURILIL IT COUNCIL SECRETARY pL This instrument was acknowledged before me on ad.e , 2009, by 'Angel R. Escobar, City Manager, City of Corpu Christi, Texa , a Texas home -rule municipal corporation, on behalf of the corporation. Notary Publi State of xas THE STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on , 2009, by 'Angel R. Escobar, City Manager, City of Corpus Christi, Texas, a Texas home -rule municipal corporation, on behalf of the corporation. Notary Public, State of Texas DEVELOPER: Extreme Homes of Texas, LLC By: J n Mikulencak Member THE STATE OF TEXAS COUNTY OF TRAVIS At This instrument was acknowledged before me on Fehruua,I" , 2009, by John Mikulencak, Member, Extreme Homes of Texas, LLC , a Texas limited liability corporation, on behalf of the corporation. Page 7 of 8 MANY ROSCHEIZKY MY COMMISSION EXPIRES September 18, 2012 EXHIBIT 1 [Copy of Plat] EXHIBIT 2 [Reimbursement Application] EXHIBIT 3 [Map Showing Location of Infrastructure Improvements] EXHIBIT 4 [Cost Estimate] EXHIBIT 5 [Disclosure of Interest Form] 1 1 z 0 ° tH ti VIC as 1 a 1 Vli a 1 �a F $ /,/ / /// gg s 1 ` -- jiYl U— y .t EXHIBIT 1 APPLICATION FOR EXTRA PAVEMENT THICKNESS CONSTRUCTION AND REIMBURSEMENT AGREEMENT Uwe, Extreme Homes of Texas, LLC, owner and developer of the proposed Maple Hills Unit 5 Subdivision, hereby request reimbursement of $ 18.911.40 for the installation of the additional pavement thickness above that required for a residential collector street in conjunction with the Maple Hills Unit 5 Subdivision, as provided for by City Ordinance No. 17396. Said $ 18 911.40 is the construction cost, including engineering cost, as shown by the cost supporting documents attached herewith. (Developer) oa -a 09 (Date) THE STATE OF TEXAS )( COUNTY OF NUECES )( p This instrument was acknowledged before me on _hrtL4r y Or�200 (, L)lph n K ule TLXIc, fTen JD4r, e4ratL I-la rotes o4 Texas Texas Limited Liability Corp •ration 'n behalf of said corporation). By CERTIFICATION iYY Pubhe in and for the S as The information submitted with this application for reimbursement has been reviewed and determined to be correct. Reimbursement is subject to: (a) sufficiency of funds in the Capital Improvements Program Fund for Street Improvements. and (b) approval and appropriation by the City Council. aar /1.4 Developmgfit Services Engineer (Date) EXHIBIT 2 Maple Hills Subdivision, Unit 5 BASE BID STREET WORK IMPROVEMENTS TOTAL NO. QTY ITEM UNIT UNIT PRICE TOTAL PRICE A -1 14,120 Street Excavation, complete in place per square yard. SY 1.45 20,474.00 A -2 I Site Grading/Lots, complete in place per lump sum. LS 31,000.00 31,000.00 A -3 4,676 6" Caliche Base, complete in place per square yard. SY 9.50 44,422.00 44 4,632 8" Caliche Base, complete in place per square yard. SY 11.50 53,498.00 A -5 6,023 8" Lime Stabilized Subgrade, complete in place per square yard. SY 4.00 24,092.00 A-6 5,587 10" Lime Stabilized Subgrade, complete in place per square yard. SY 5.00 27,935.00 A -7 9,327 Prime Coat, complete in place per square yard. SY 1.00 9,327.00 A -8 4,676 t -1/2" HMACP, complete in place per square yard. SY 8.75 40,915.00 A -9 4,652 2" HMACP, complete in place square yard. SY 10.50 48,846.00 410 5,245 6" Curb & Gutter, complete in place per linear foot. LF 10.00 52,450.00 411 19,889 Concrete Sidewalk, complete in place per square foot. SF 3.75 74,583.75 412 12 Handicap Ramps w/ Truncated Domes, complete in place per each. EA 600.00 7,200.00 A -13 5 Street Signs, complete in place per each. EA 550.00 2,750.00 STREET WORK IMPROVEMENTS TOTAL S 437,492.75 WATER DISTRIBUTION 13-1 1,382 6" Waterline, complete in place per linear foot. LF 24.00 33,168.00 B -2 8 6" 45° Bends, complete in place per each. EA 250.00 , 2,000.00 B -3 2 6" Plug, complete in place per each. EA 150.00 300.00 B-4 703 8" Waterline, complete in place per linear foot. LF 28.00 19,684.00 B -5 4 8" 45° Bends, complete in place per each. EA 365.00 1,460.00 B -6 1 8" Plug, complete in place per each. EA 200.00 200.00 B -7 1 Waterline Connection, complete in place per each. EA 2,500.00 2,500.00 B -8 7 Fire Hydrant Assembly w/ Mainline Tee, complete in place per each. EA 2,850.00 19,950.00 B -9 62 Water Service, complete in place per each. EA 600.00 37,200.00 WATER DISTRIBUTION IMPROVEMENTS TOTAL S 116,462.00 WASTEWATER C -I 1,737 8" Wastewater Line, complete in place per linear foot. LF 29.00 50,373.00 C -2 3 8" Plug, complete in place per each. EA 150.00 450.00 C -3 718 10" Wastewater line, complete in place per linear foot. LF 36.00 25,848.00 C-4 5 4' a Wastewater Manhole (0'4' Depth), complete in place per linear foot. LF 2,500.00 12,500.00 C -5 3 Extra Depth for 4'e Manhole (Over 6' Depth), complete in place per linear foot. VF 275.00 825.00 C -6 62 Wastewater Service, complete in place per linear foot. EA 550.00 34,100.00 C -7 2,620 Trench Safety (Wastewater), complete in place per linear foot. LF 2.00 5,240.00 WASTEWATER IMPROVEMENTS TOTAL S 129,336.00 STORM WATER D-1 376 118" RCP, complete in place per linear foot. LF 29.00 10,904.00 D -2 51 24" RCP, complete in place per linear foot. LF 38.00 1,938.00 Bid Proposal Page 1 of 3 EXHIBIT 4 a is CITY OF CORPUS CHRISTI DISCLOSURE OF INTERESTS City of Corpus Christi Ordinance 17112, as amended, requires all persons or firms seeking to do business with the City to provide the following information. Every question must be answered. If the question is not applicable, answer with "NA'. _ p FIRM NAME e2 77EZf / !� �'tes or oaf • STREET: 3r52‘ AWL L. f ,ice crrir:SZIP: 781,/3 • FIRM is: 1. Corporation 1/ 2. Partnership 3. Sole Owner 4. Association — 5. Other DISCLOSURE QUESTIONS If additional space is necessary, please use the reverse side of this page or attach separate sheet. 1. State the names of each "employee" of the City of Corpus Christi having an "ownership interest" constituting 3% or more of the ownership In the above named "flnn ". Name Job Title and City Department (if known) / V 2. State the names of each "official" of the City of Corpus Christi having an "ownership interest" constituting 3% or more of the ownership in the above named "firm" Name Title /1/4 3. State the names of each "board member" of the City of Corpus Christi having an "ownership Interest" constituting 354 or more of the ownership in the above named "firm". Name Board, Commission or Committee 4. State the names of each employee or officer of a "consultant" for the City of Corpus Christi who worked on any matter related to the subject of this contract and has an "ownership interest" constituting 3% or more of the ownership in the above named "firm". Name Consultant w/A CERTIFICATE I certify that all information provided is true and correct as of the date of this statement, that 1 have not knowingly withheld disclosure of any information requested; and that supplemental statements will be promptly submitted to the City of Corpus Christi, Texas as changes occur. Certifying Person: J o,r%✓� /✓I' / /(/J //C k Tide: /' &iixii (Type or Print) /� Signature of Certifying Person: �`��UJ / " Date: OZ--./2-409 EXHIBIT 5