HomeMy WebLinkAboutC2010-251 - 6/18/2010 - NAFAIR SHARE AGREEMENT
This FAIR SHARE AGREEMENT ( "Agreement ") is entered into by and between the
CITY OF CORPUS CHRISTI, TEXAS (the "City "), a home rule municipal corporation
organized under the laws of the State of Texas, and CORPUS CHRISTI RETAIL VENTURE
LP, a Delaware limited partnership ( "Developer ") formed by Trademark Property Company, a
Texas corporation, and Institutional Mall Investors LLC.
WHEREAS, the City and Developer entered into a Preliminary Financing Agreement
(the "Financing Agreement "), dated as of April 25, 2008, for the redevelopment of the Padre
Staples Mall in Corpus Christi, Texas ( "Padre Staples Mall');
WHEREAS, as part of the Financing Agreement, the Developer has agreed in connection
with the redevelopment of the Padre Staples Mali (the "Project ") to (a) exercise reasonable
efforts to utilize (i) contractors and suppliers that are determined to be disadvantaged business
enterprises ( "DBE "), including minority business enterprises, women -owned business
enterprises and historically- underutilized business enterprises, as provided in Section 3.05 of the
Financing Agreement (the "DBE Goal ") and (ii) local contractors and suppliers ( "Local Firm ")
as provided in Section 3.04 of the Financing Agreement (the "Local Goal "); (b) comply with the
reporting requirements under Sections 3.04 and 3.05 of the Financing Agreement; and (c)
encourage third -party contractors, consultants, or suppliers to adopt comparable DBE and Local
Firm goals;
WHEREAS, the total amount of all construction contracts and supply agreements made
by the Developer in connection with the construction of the Project shall include, without
limitation, redevelopment costs, hard construction costs, contractor fees, costs of supplies and
materials, new fixtures, furniture, equipment, and taxable personal property purchased for use at
Padre Staples Mall, engineering fees, architectural fees, and other professional and development
fees, excluding for purposes of the DBE Goal and the Local Goal any costs incurred for
services, supplies or property not available through a DBE firm or Local Firm ( "Construction
Costs ");
WHEREAS, all DBE firms must have been certified by the City, the Regional
Transportation Authority or another governmental entity in the jurisdiction of the home office of
the business as complying with state or federal standards for qualification as a DBE;
WHEREAS, in order to provide independent verification of the Developer's efforts with
respect to the DBE Goal and the Local Goal, the City and the Developer have agreed to jointly
recruit and select a person or firm to provide independent verification of the Developer's
activities ( "Project Auditor ");
WHEREAS, all capitalized terms used herein which are not otherwise defined have the
same definitions as set forth in the Financing Agreement; and
Page 1
2010- 251exas and Corpus Christi Retail Venture LP
06/18/10
Corpus Christi Retail Venture
INDEXED
NOW, THEREFORE, BE IT RESOLVED, that the Developer does hereby agree to
exercise reasonable efforts to meet the DBE Goal and the Local Goal; it is further
RESOLVED, that the Developer agrees, during the period of construction of the Project
and for four years after Completion, to maintain written records documenting the efforts of the
Developer to meet the DBE Goal and the Local Goal. Within ninety (90) days of Completion,
the Developer shall provide the Project Auditor written reports in the form attached hereto as
Exhibit "A" documenting the involvement of DBE's and Local Firms; it is further
RESOLVED, the Developer will provide the City with an amount not to exceed $10,000
to compensate the Project Auditor for its services hereunder; it is further
RESOLVED, that Gideon Toal is hereby appointed as the Project Auditor to perform the
services described on Exhibit "B ", provided that if the Project Auditor resigns or is removed as
such, then any successor shall be jointly approved and mutually acceptable to City and
Developer; it is further
RESOLVED, that notwithstanding any provisions herein to the contrary, the Developer,
as a show of its commitment to inclusion, commits to keep in place throughout the construction
period of the Project (but in no event does this commitment bind any successor owners, assigns,
or tenants) a program which will provide for Local Firm and DBE participation goals as
described in Sections 3.04 and 3.05, respectively, of the Financing Agreement. The Developer
agrees to exercise reasonable efforts to utilize DBE firms in the construction of the Project with a
goal of at least twenty -five percent (25 %) of the Construction Costs being paid to DBE firms,
with a priority made for DBE firms which are local as contemplated in Section 3.05 of the
Financing Agreement. The following table shall establish the portion of a contract with a DBE
which shall count towards the DBE Goal:
DBE Firms in Corpus Christi MSA
100%
DBE Firms elsewhere in Texas
80%
DBE Firms outside Texas
60%
The Developer agrees to exercise reasonable efforts to utilize Local Firms in the construction of
the Project with a goal of at least thirty percent (30 %) of the Construction Costs being paid to
Local Firms. If a contractor is both a DBE and a Local Firm, one hundred percent (100 %) of the
contract shall count towards each of the DBE Goal and the Local Goal. A contractor or supplier
shall be considered located in the Corpus Christi MSA if it has maintained an office or the owner
has maintained his or her primary residence within the Corpus Christi MSA for at least two
years. This goal shall apply to the Construction Costs paid by the Developer in connection with
the construction of the Project; it is further
RESOLVED, the parties acknowledge that some construction and supply agreements will
be controlled by particular tenants of the Developer and not under the control of the Developer.
The Developer agrees to encourage such third parties to adopt a comparable goal of paying
twenty -five percent (25 %) and thirty percent (30 %) of their construction costs to DBE firms and
Local Firms, respectively, but the City acknowledges that Developer has no legal authority in
Page 2
Fair Share Agreement
between City of Corpus Christi, Texas and Corpus Christi Retail Venture LP
connection with such third -party contracting. The total amount of all construction contracts and
supply agreements made by third parties shall count towards the minimum investment of private
capital requirements and allocated among Phase I and Phase II as set forth in the Financing
Agreement; it is further
RESOLVED, if the Developer fails to meet it reasonable efforts to expand at least
twenty -five percent (25 %) and thirty percent (30 %) of all Construction Costs with DBE firms
and Local Firms, respectively, Developer shall not be in default under this agreement or the
Financing Agreement and no reduction in the Reimbursement Amount payable to Developer
under the Financing Agreement shall be assessed so as long as Developer has exercised.
reasonable efforts to comply with the DBE Goal and the Local Goal, as long as the Developer
keeps and provides the City records required to be maintained under Sections 3.02, 3.04, and
3.05 of the Financing Agreement documenting its reasonable compliance attempts.
RESOLVED, the Developer shall be deemed to have exercised reasonable efforts to
comply with the DBE Goal and the Local Goal as long as the Developer provides the Project
Auditor with the reports required to be delivered hereunder and maintains the records supporting
the information in such reports as provided herein, even if the Developer does not actually meet
the compliance goals; and it is further
RESOLVED, that the undertaking and commitments set forth in these resolutions do not
constitute a part of, and shall not be deemed to modify, amend or abrogate, any provision of, the
Financing Agreement or any related agreement between the City and the Developer.
{Signature Page Follows}
Page 3
Fair Share Agreement
between City of Corpus Christi, Texas and Corpus Christi Retail Venture LP
EXECUTED to take effect on the Effective Date:
CITY OF CORPUS CHRISTI, TEXAS, CORPUS CHRISTI RETAIL VENTURE LP,
a home -rule municipal corporation a Delaware limited partnership
By:
r
. Escobar, City Manager
Date: L l l S)
APPROVED AS TO FORM "
LEGALITY:
By:
if rs� 4rn &7t, 1161‘4"1
By:Trademark Padre, L.P.
Its: General Partner
• By: TP Genpar, LLC
Its: General Partner
By:
Daniel Upton,- Senior Vice
President of Asset Management
Page 4
Fair Share Agreement
between City of Corpus Christi, Texas and Corpus Christi Retail Venture LP
Exhibit "A"
Reporting Form
Exhibit A
Fair Share Agreement
between City of Corpus Christi, Texas and Corpus Christi Retail Venture LP
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Exhibit `B"
[Duties/Form of Agreement with Project Auditor]
1. The Project Auditor shall review the written reports provided to it by the
Developer.
2. To the extent the Project Auditor deems it necessary or appropriate, review the
records maintained by the Developer which contain information supporting the Developer's
reports.
3. Verify the eligibility of the firms identified as meeting the requirements for status
as a DBE or Local Firm. Notwithstanding any independent investigation by the Project Auditor,
the Project Auditor may rely upon the determination made by the City or another governmental
entity as to the qualification of a contractor or supplier as a DBE.
Exhibit B
Fair Share Agreement
between City of Corpus Christi, Texas and Corpus Christi Retail Venture LP
cideontoal
May 24, 2010 •
Chris Harden
Trademark Property Company
301 Commerce Street, Suite 3635:
Fort Worth, Texas 76102
RE: PROJECTAUDIi1NG FOR FAIR SHARE AGREEMENT
Dear Mr. Harden:
Gideon Toal is pleased to provide this proposal to Trademark Property Company (the "Developer ") for project
auditing and independent verification services for the La Palniera development located generally at the
intersection of South Padre Island Drive and South Staples Street in Corpus Christi, Texas (the "Project ").
Purpose
The purpose of this scope of services is to work directly with the Developer and the City of Corpus Christi, Texas
to provide independent verification and monitoring of the construction activities in relation to the attached Fair
Share Agreement.
Scope of Services
Our proposed scope of services includes;
2.) Pevsev• or •ritten- reports pro`•!oeo to f_!«' eon 1021 by t'le L7eveloper.
2) Review of the records maintained by the Developer which contain information supporting the
Developer's reports.
3) Verification as to the eligibility of the firms listed as meeting the requirements for status as DBE or
Local Finn. Status will be verified by the. City of Corpus Christi or another governmental entity in which
the DBE is registered.
4) Provide quarterly reports to the City summarizing the information provided in the Developer's reports
and any other records relating thereto.
Fee for Services
Our fee for services will be billed on an hourly basis plus reimbursable expenses up to $10,000 annually. Any
amount exceeding $10,000 annually will require written approval of Client.
Hey Staff
David Pettit, Principal, would manage the project Key staff from Gideon Toal working on the project would be
• Robert Smith, CS!, CCCA, Construction Administrator
• Stephen Pepper, Development Analyst
G
ideon too l
Term of Agreement
If the services covered in the proposal have not been completed within twelve (12) months of the date services
begin, then this agreement shall terminate. Additionally, Client may terminate this Agreement for any reason
upon thirty (30) days written notice to Gideon Toal and Gideon Toal will cease any and all work upon receipt of
such notice, unless otherwise directed in the notice. In the event of a termination as described above, Client
shall be responsible for the payment of the fees and expenses incurred by. Gideon Toal pursuant to this
agreement through the date of such termination.
Changes of Scope and Additional Services
Minor additions to our scope will be treated as Additional Services. Work on Additional Services will not begin
until authorized in writing by the Client.
Additional Services and Rates for Hourly Services
Additional Services shall be billed on an hourly basis unless a fixed fee or other method of compensation is
mutually agreed upon. Our current hourly rates are:
Classification Hourly Billing Rate.
Principal $275.00
Senior Project Manager $175.00
Project Manager $160.00
Project Architect] $140.00
Project Architect 11 $120.00
Arnhitent, In +arn 1 X11 f1 nn
Architectural Intern II $100.00
Senior Planner $150.00
Planner $120.00
Development Analyst $120.00
Planning Intern $100.00
Landscape Architect I $140.00
Landscape Intern $100.00
Interior Designer! $120.00
Interior Designer 11 $100.00
Interior Design Intern $80.00
Construction Administrator $120.00
Technician I $90.00
Technician II $80.00
Administrative $80.00
These rates apply for the current calendar year and are subject to revision on January 1, when they may be
revised to reflect changes in staff salaries over the preceding year
Reimbursables
We propose to be reimbursed for out -of- pocket expenses incurred in the interest of the project at one point one
(1.10) times our actual cost. Reimbursable expenses include: our direct consultants and their expenses (to be
reimbursed, all consultants and their bids must be approved in writing, in advance by the client); reproduction;
local cell phone and long distance communication; document printing and delivery; document graphics and
giceontoal
binding; delivery, postage and handling; local transportation and travel time; special materials; photography;
etc. (Reasonable backup will be provided for all reimbursable expenses.)
Invoices and Payments
Payment for services rendered is due within thirty (30) days of Client's next monthly billing cycle following
receipt of invoice. In the event any invoices remain unpaid 45 days after the invoice date, we suspend work
until we have been paid in full all amounts due for services and expenses. Amounts unpaid for more than 30
days after the due date carry a re- billing charge of one point two percent (1.2°%) per month from the date of the
invoice. In the event we are forced to commence a collection proceeding, you agree to pay reasonable
attorneys fees and court costs, in addition to our fees billed under this proposal.
Suspension and Termination
If the project is suspended or abandoned, Gideon Toal will be compensated for all services billed prior to
receipt of written notice by the Client. Services that are not billed or completed between billing periods and
receipt of written notice will be reimbursed at Gideon Toal's standard hourly rates.
If the scope or schedule of the project should change beyond that to be reasonably expected due to the
program changes, schedule or other reason, at their option, Gideon Toal will re- negotiate the aforementioned
fees and scope of work.
Certifications
Guarantees and Warranties: We will not be required to execute any document that would result in our
certifying, guaranteeing or warranting the existence of conditions whose existence we cannot ascertain.
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project auditor as specified in the $80 Fair Share Agreement.
Authorization to Proceed
Thank you again for this opportunity to work with you. Your signature below and the return of one copy to us for
our file will confirm your approval and authorize us to proceed.
Insurance
Gideon Toal will provide proof of professional liability insurance (including errors and omissions) with minimum
limits of $1,000,000 per occurrence and $2,000,000 in the aggregate and excess /umbrella liability of
$5,000,000 per occurrence and $5,000,000 in the aggregate to client Additionally, Gideon Toal shall carry
the following insurance coverages;
(a) Worker's compensation insurance at the statutory limits and employer's liability insurance,
with minimum limits of $1, 000, 000. 00 /$1,000,000.00/$1,000,000.00; and
(b) Comprehensive general liability insurance, with minimum limits of $1,000,000.00 each
occurrence and $2,000,000.00 in aggregate; and
(c) Comprehensive automobile liability insurance, with minimum limits of $1,000,000.00
combined single limit each occurrence; and
Gideon Toal has previously provided, or concurrently with the execution of this agreement is providing, to Client
a certificate of insurance issued to Client evidencing the foregoing insurance coverages and evidencing that
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1' gideontoal
Client and Client's lender, if any, are additional insured parties with respect
to in the foregoing subparagraphs (b) and (c).
to the insurance policies referred
Notices
Any notice required or permitted to be given to either party shall be deemed to be received by such party
(a) three (3) days after deposit in the United States Registered or Certified Mail Return Receipt Requested, or
(b) one (1) business day after deposit with a nationally recognized overnight delivery service for next day
delivery, or (c) upon personal delivery to the party to whonii addressed provided that a receipt of such delivery
is obtained,: or (d) on the next business day after transmission by telecopy provided that a confirmation copy is
concurrently deposited in United States Certified or Registered Mail, Return Receipt Requested, in any case
addressed to the parties at the following addresses:
If to Client:
Trademark Property Company
1600 W. 7111 Street, Suite 400
Fort Worth, Texas 76102
Attention: Chris Harden
Telecopy No.: (817) 810 -5327
If to Gideon Teal:
Gideon Taal •
RI-1n 1A /act Cavanth Strcot Chita 1 Ann
Ft. Worth, TX 16102
Attention: David Pettit
Telecopy No.: (817) 810-5381
or to the parties at such other addresses or telecopy numbers as they may designate by notice to the other
party as herein provided.
SUMMARY
I hope this accurately outlines the professional services you anticipated. If you have any questions or concerns
please do not hesitate to contact me at 817.333.2872.
Thank you for considering Gideon Toal.
David Pettit
Principal
If this agreement meets with your approval, please sign and return one executed copy to our office as notice to
proceed.
AGREED TO AND ACCEPTED BY:
Chris rden
DATE
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