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HomeMy WebLinkAboutC2010-554 - 12/14/2010 - ApprovedAGREEMENT RELATED TO CONSTRUCTION OF ROADWAY IMPROVEMENTS FOR FLOUR BLUFF DRIVE This Agreement Related to Construction of Roadway Improvements for Flour Bluff Drive (hereinafter this "AGREEMENT ") is entered into between the CITY OF CORPUS CHRISTI, TEXAS, a Texas Home Rule Municipality (hereinafter the "CITY ") and WAL - MART REAL ESTATE BUSINESS TRUST, a Delaware trust (hereinafter "WAL - MART"). WHEREAS, WAL -MART has purchased property adjacent to Flour Bluff Drive near the intersection with South Padre Island Drive and intends to commence construction of improvements for a retail store to be operated on such property; WHEREAS, the CITY has solicited bid proposals for its Project Nos. 6498 and 6499 for improvements to Flour Bluff Drive consisting of the construction of Phase 1 from South Padre Island Drive to Graham Road and Phase 2 from Graham Road to Don Patricio (the "Flour Bluff Drive Improvements ") and the CITY included in the bid categories "Additive Alternate No. 7" which requested a bid for any additional cost required to construct and complete Phase 1 of the project before starting Phase 2 (the "Phasing Alternative "); WHEREAS, the award of the contract for the Flour Bluff Drive Improvements (the "Construction Contract ") to the selected contractor, Haas - Anderson Construction, Ltd. (the "Contractor "), was approved by the Corpus Christi City Council on December 14, 2010 by Motion No. 2010 -305, and the Construction Contract has been executed and delivered on behalf of the CITY and the Contractor, and the CITY has issued notice to the Contractor to proceed with the work under the Construction Contract; WHEREAS, in connection with the award of the Construction Contract, the Corpus Christi City Council passed (i) Motion No. 2010 -306 authorizing the City Manager or his designee to award the Phasing Alternative to the Construction Contract; and (ii) Motion No. 2010 -307 authorizing the City Manager or his designee to execute an agreement with WAL -MART for the CITY to require the Contractor to construct the Flour Bluff Drive Improvements with the Phasing Alternative and for WAL -MART to pay the CITY and reimburse its actual costs for phasing the construction project as requested by WAL - MART; WHEREAS, WAL -MART desires that the CITY issue a change order (the "Early Completion Change Order ") to the Construction Contract to elect the Phasing Alternative and agree to pay a bonus to the Contractor as hereinafter provided in order to attempt to cause Phase 1 of the Flour Bluff Drive Improvements to be completed prior to the date of expected opening of WAL- MART's planned improvements on its adjacent property; 2010 -554 12/14/10 Wal -Mart INDEXED Page 2 of 5 WHEREAS, to induce the CITY to issue the Early Completion Change Order, WAL - MART is willing to pay the additional cost which will be incurred by the CITY pursuant to the Early Completion Change Order or in connection therewith; NOW, THEREFORE, for the consideration set forth hereinafter, the CITY and WAL - MART agree as follows: Within ten (10) days after execution and delivery of this AGREEMENT by WAL - MART and the CITY, WAL -MART agrees to deliver $200,000.00 (the "Cost Deposit ") to the CITY to be held and disbursed by the CITY in accordance with the terms of this AGREEMENT. 2. Within ten (10) days after execution and delivery of this AGREEMENT by WAL - MART and the CITY and receipt of the Cost Deposit from WAL -MART, the CITY agrees to issue a change order (the "Early Completion Change Order ") to the Construction Contract containing terms consistent with this AGREEMENT to (a) require the Contractor to construct the Flour Bluff Drive Improvements with the Phasing Alternative and establish the date for completion of Phase 1 as November 1, 2011 (which will provide for payment to the Contractor of an amount of $100,000 for completion of Phase 1 by November 1, 2011; and (b) agree to pay a bonus to the Contractor in the amount of $1,750 for each calendar day, up to a maximum of forty -five (45) days, that Phase 1 is completed prior to November 1, 2011 in exchange for the Contractor's covenant to use diligent good faith efforts to attempt to complete Phase 1 by September 15, 2011 (the "Early Completion Bonus "). The Early Completion Change Order shall require the Contractor to acknowledge and agree that the Contractor shall not be entitled to receive the Early Completion Bonus unless, and only to the extent, that the Contractor achieves completion of Phase 1 prior to November 1, 2011 as provided above. 3. For purposes of this AGREEMENT, "completion" or "complete" or "completed" shall refer to the point in time when the work for Phase 1 has been reviewed by the City and found to be physically open and available for vehicular traffic and substantially complete. Substantial Completion means the City (Owner) and the public have unrestricted use and access of all facility of the roadway and street improvements, both from the operational and the safety standpoint, for the purposes intended, and only minor incidental work, replacement of temporary substitute facilities, or correction or repairs remains to complete the total work. Substantial Completion of Phase 1 includes all work on Flour Bluff Drive in between SPID and the Compton Road intersection, including the intersection, storm sewer, water lines, curb and gutter, sidewalks and driveways on the west side and full width street work (including curb & gutter) through the first lift of hot mix, and temporary pavement markings for the full roadway width, and does not include final manhole adjustments to grade (which will be done after the final lift of hot mix is laid at the end of the whole project work). HOU:3076865.2 Page 3 of 5 4. The Contractor's conditions for completing Phase 1 by November 1, 2011 are incorporated herein, attached as Exhibit 1, and made a part of this AGREEMENT. 5. Upon execution and delivery by the Contractor and the CITY of the Early Completion Change Order, the CITY agrees to apply the Cost Deposit solely to the cost incurred for the Early Completion Change Order and reimbursement to the CITY of any incremental costs incurred by the CITY as a result of implementing the Early Completion Change Order in a manner consistent with this AGREEMENT. The CITY further agrees to use diligent good faith efforts to enforce the Construction Contract and the Early Completion Change Order for the timely completion of Phase 1 in accordance with the terms thereof. WAL - MART agrees to reimburse the CITY for costs incurred as a result of implementing the Early Completion Change order in a manner consistent with this AGREEMENT. Within thirty (30) days after completion of Phase 1 of the Flour Bluff Drive Improvements, the CITY shall provide a detailed statement to WAL -MART showing all payments made from the Cost Deposit, and all costs incurred by the CITY, together with supporting documentation. The CITY shall return to WAL -MART any unused portion of the Cost Deposit with such detailed statement. As soon as possible, but not later than thirty (30) days after WAL - MART's receipt of such detailed statement, WAL -MART shall deliver a check to the CITY to reimburse the CITY for the total amount of the costs incurred by the CITY under the terms of this AGREEMENT but not paid from or covered by the Cost Deposit, if any. 6. WAL -MART acknowledges that (a) the CITY has not and does not guarantee that the Flour Bluff Drive Improvements will be completed by any particular date, including as may be specified in the Early Completion Change Order, or the completion of the Flour Bluff Drive Improvements or the quality of the work to be performed by the Contractor, and (b) the CITY is not and shall not be responsible for any losses, lost profits, lost productivity, or any other damages or losses that WAL -MART or any of its affiliates may suffer or incur, directly or indirectly, arising from the Contractor's failure to perform the Flour Bluff Drive Improvements in accordance with the Early Completion Change Order. If for any reason the Early Completion Change Order is not issued by the CITY and accepted by the Contractor as required by the terms of this AGREEMENT within thirty (30) days after execution and delivery of this AGREEMENT by WAL -MART and the CITY, the CITY agrees to return to WAL -MART the full Cost Deposit within thirty (30) days of WAL- MART's written request. 7. WAL -MART AGREES TO INDEMNIFY DEFEND AND HOLD THE CITY AND ITS RESPECTIVE COUNCIL MEMBERS, BOARD MEMBERS, OFFICERS, EMPLOYEES AND AGENTS ( "INDEMNIFIED PARTIES') HARMLESS FROM ANY ACTIONS, SUITS, LIENS, CLAIMS, DAMAGES, EXPENSES, LOSSES AND LIABILITIES, INCLUDING REASONABLE ATTORNEYS FEES AND HOU:3076865.2 Page 4 of 5 EXPENSES (COLLECTIVELY, "INDEMNIFIED MATTERS'), ARISING FROM OR IN CONNECTION WITH ITS PROCEEDINGS PURSUANT TO THIS AGREEMENT, WHICH INDEMNITY SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT; PROVIDED, HOWEVER, WAL -MART SHALL NOT BE REQUIRED TO INDEMNIFY, DEFEND OR HOLD HARMLESS THE INDEMNIFIED PARTIES TO THE EXTENT ANY INDEMNIFIED MATTERS RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNIFIED PARTIES. 8. Neither WAL -MART nor any of its affiliates shall be a third party beneficiary to the Construction Contract. The Contractor shall not be a third party beneficiary of this AGREEMENT and this AGREEMENT shall not be construed to grant or create any right of recovery to the Contractor against WAL -MART for amounts in dispute or otherwise payable by the CITY under the Construction Contract. 9. No party may assign this AGREEMENT or any rights under this AGREEMENT without the prior written approval of the other party. The provisions of this section do not apply to an assignment by WAL -MART to any affiliated entity of WAL -MART, however notice shall be provided to the CITY if such an assignment by WAL -MART occurs. 10. Unless otherwise stated herein, any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery, by fax, or by certified mail, and if given personally, by fax or by certified mail, shall be deemed sufficiently given if addressed to the appropriate party at the address noted above the signature of the party. Any party may, by notice to the other in accord with the provisions of this paragraph, specify a different address or addressee for notice purposes. 11. This AGREEMENT shall be construed under and in accord with the laws of the State of Texas and all obligations of the parties created hereunder are performable in Nueces County, Texas, and all lawsuits pursuant hereto shall be brought in Nueces County. 12. WAL -MART further agrees, in compliance with the CITY'S Ordinance No. 17113, to complete, as part of this AGREEMENT, the Disclosure of Ownership interests form attached to this AGREEMENT as Exhibit 2. 13. This AGREEMENT shall be executed in triplicate, all original copies of which shall be considered one instrument. This AGREEMENT becomes effective and is binding upon, and inures to the benefit of the CITY and WAL -MART, and their respective heirs, successors and assigns, from and after the date that all original copies have been executed by all parties. I.UlIAt3iyl4.�i.�►� Page 5 of 5 14. 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 by their signature. 15. Upon completion of performance of this AGREEMENT, this AGREEMENT shall terminate except with respect to any provisions herein which are expressly provided to survive such termination. EXECUTED in triplicate this � day of _ f 6c� DONNA SCOULMN5 NOTARY PUBLIC Benton County, Arkansas Myy Commission Expires 1/3112016 Commission Number 12346172 h WAL -MART: Wal -Mart Real Estate Business Trust 2001 S.E. 10th St. Bentonville, Ark nsas 72716 -0550 By: Name: r�1r Title: rro�r7 CITY OF CORPUS CHRISTI P. O. Box 9277 Corpus Christi, Texas 78469 Telephone: (361) 880 -3500 Facsimile. (361) 880 -3501 ATTEST: By: Armando Chapa City Secretary By: �� e . IQ44 Margie C. Rose Interim City Manager APPROV AS TO FORM: This dav of ' 2011. Veronica Ocanas, Assistant City Attorney For the City Attorney to- l-�-A0 HOU:3076865.2 HAAS - ANDERSON C 0 N S T R U C T f 0 N LTo December 3, 2010 Mr. Murray F. Hudson, P.E. Urban Engineering 2725 Swantner Corpus Christi, TX 78404 Re: Flour Bluff Drive Phase 1 from SPID to Graham Phase 2 from Graham to Don Patricio City Project Nos. 6498 & 6499 Dear Mr. Hudson: This correspondence shall serve as our "conditions" for completing the Walmart portion of the project by November 1 51 . Substantial Completion will be defined as the work in between SPID and the Compton Road intersection including the intersection and will include all storm sewer, water lines, curb and gutter, sidewalks and driveways on the west side and full width street work (including curb & gutter) through the first lift of hot mix, and temporary pavement markings for the full roadway width. It will not include the final manhole adjustments to grade as this will be done after the final lift of hot mix is laid at the end of the whole project • Flour Bluff Drive will not be used for ingress or egress to the Wal -Mart construction site by construction traffic, site deliveries, employee access, etc. All traffic related to construction of the Wal -Mart shall enter and exit the site via SPID frontage road, no exceptions. • Preconstruction meeting to be on December 21st. • Work must begin on January 0. November Ist is just a miletone date. HAC will be able to work on all phases and any additive alternates from the start of construction. HAC will not be limited to work within Phase 1 only. 1401 Holly Rd. • P.O. Box 7692 + Corpus Christi, Texas 78467 • 3611853 -2535 • FAX 361/853 -5564 Exhibit 1, p.1 of 5 • City issues or Utility conflicts will be grounds for a time extension to the Nov. 1 date such as ROW or Easement acquisitions, City gas fine adjustments, or possible utility conflicts from AEP, AT &T, 6" Exxon pipeline, or other unknown utility conflicts that might have a negative impact on the critical path of the project. . • City or Urban will have to provide traffic control plans for working on the east half of phase 1 while the west half of phase 2 is still under construction, and for Phase 2 only plans (east and west sides) once Phase 1 is opened to traffic completely. • Adverse weather worse than that described in Special Provisions A -6 will be grounds for a time extension to the Nov. 1S date. • Acts of God such as hurricanes, etc. will be grounds for a time extension to the Nov. 1"t date. + Liquidated Damages amount per day over the Nov. 1 milestone date as a result of our performance will have to be acceptable to HAC. + If overtime, weekend, or holiday work is required to make up for delays caused by the City, a utility company, or acts of God, we will be compensated. Drew P. Cullen, P.E. Haas - Anderson Construction, Ltd, Exhibit 1, p.2 of 5 Exhibit 1, p.3 of 5 M x S a 4P O N 1990 GurO 8 Gutter Btl 90ALIG71 OSSOPII Gum d Guf1e z. ®Driveways �Si4ewak. Curb Ramps 10 Compton �F'-n C.". One Course Fial Mix Fe51 Ldt Temp PaA Marta Tra,fio Swaoh 1400 Dm 9d 9A 09SEP11 21SEPt1 1430 Smewak, Curb Ram to Compton 1 12 22SEP71 11=11 1410 Fine Grape 2d 2.di 12OCT,7 13OCT71 1440 Ono Course 1 1tl 14OCT11 140GT71 1420 111, Mu RM Lie 2d 2tl L7DCT71 480CTT1 1450 T Pad MorWTdafic Slvilcn 3d 3A 59OCT51 21OCT71 Mks 9emave2(r —Y ater Line L - r Force Main Offset �...�I6 "VOa1erL T �12 "Wafer UfM =6 mtorLa;* Laterals � Flus%. Ctllpnnate. S. Test Y4aler Litre Me less 1550 ft m ve Zr ACPYL41er Une I 10d 70 D43AN71 II&LANII 1490 Force Main Offset I 2d 2d 17MAR1 Y I SSMAR7 1590 le'vVelef Line lod Y 21MAR7Y 04APR71 1510 72'VdbM,Line 1 1 OSAPRi, t9APR1Y 1520 Water Line Laterals 7d 7d! 20APRY1 2SAPRt1 1590 Flush. ChlDruMe. 5 Test Stl 8d 29APR11 11MAY11 1540 lNetar Una Tc fns SO SA I2MAY11 18MAY11 '.SmrmSwarer - Storm SOwerTnmk Lino � JJ SEOam Sewdr Laterals r.�Ca51 In Plain HoeOwatlsdiipryp l ime 1 S7onn SewerTruek Line 33tl lswal 02AUGti 51drr1i Se Wcirats 1 160 04AUG11 26AUG11 1 !570 1580 Cast In Place Head allsiR 6d 6d 29AUG71 O6SEP77 'Skm0ll0rkWastaide - - - I Roapway Ero Vmion Cum Subgrade Prep C;6 J Lmaestone Base Plain B COmpaW &:6rurb 6 Gutter �Dmeways t.� ® J J Sitle�wa0s. Cum Rumps. e1c. W Fmr Gratlt: {=One Come � Ma Flrst LnL porary Pavement Markmas i000 52!SLAM Excavalion 6a 6d 09NOV71 16NOV77 1610 Sli er Curb 3d 3d 17NOV11 21NOV1enger 1620 5 mtic Pro Sd 51$ 22NOV11 291NOV77 7690 Umeslone Base Place d C*mpact Sd 5030NOV77 OWECII 1649 Curb &GuOer 64 6d 07DEC1i 14DEC11 1650 Dnveways 4A 4d 1511F_C11 MM11 - 1660 Sidewalks. Cure Ramps, etc 2A 200 21DEC11 20JAN12 1870 Fine Grady 2d 2a 23JAN72 24JAN72 7800 Ond Come ,d 1tl26JAN12 26JAM2 7890 HW Mix Fist Ldt 2d 2d27JAN72 30JAN12 1700 T-mp2nny Pavement MaM1i s 2d 2d 31JANt2 MFER12 ttusetSMerk'EoatSlde - - .. J Tramc Swim 4A Demolti. of Elostin0 � RerJdim nl SaMallr Evs rig Road%ay .,,1 ROa0rmY F�rwvalioa � StkgW Curb Subgratle Pmp Limestone Sale Ptore & Crrmpaa Cur48Cu0er Driveways Gewatcs. Curb Ramps, We. M S Fiee Grade d� C. I+- IHaIMKFast LAt 1716 Tmir6 - swank ttl td MF'E812 03FEB12 1720 DmnnM M of - StRM 4d 4d BSFE612 OFE812 1630 Rapaim aMl Sal c bdsn no Roaftay 4d 4d IDFEB12 .i5FE812 1730 RORd E�avesiwr Sd 6d 18FEB12 23FEB12 - 1740 sa rCUrp 3tl 3d 24FECt2 28FBC12 1750 Su fade Pro 5d 50 29FEH12 06MAR12 1760 UMOSUM Bose Place d Compact 5d 5d OaMAR12 14MAR72 - 1770 Cum &Goner sd 6tl 15MAR12 22MAR12 1840 Odvnwa 10tl IN 23MAR,2 09APR72 1700 SKWMDs, Cum , etc. 350 lOAPAi2 3,MAY12 1790 Fine Gentle 2d 24 tHJUN12 04JUN12 1800 One Caarse 1d 1d OSJUN32 OSJUN12 �. 1810 Hen Ma Frrsl Ltlr 2tl 2tl 07JUN12 MUN12 Demo Ptoe and inlet p+' ? y3ljer SuG]ratic Prcp UmeslOnc Base 18PA Dana A' o and1nka 1 14 ,tl Z4CCT71 2409"1 1e7C — alui M a 2SOC'n 1 2SOCT11 i — l subiinwepmp 1 21 U1 27OCT1I 2SOCT11 1990 Limestone case I 2dl 2d 31OGT11 01=1V71 Start dAO 04JAN77 Finish date 79JU012 Haas- Anderson Construction, Ltd. Flour B drive E.W tsar s Progress bar Critical eor — mMSumumry bar 4 Start milestone point. 4 FmrsT rr4reatpne Arlen Rata Aare 0 7 Ilan dare D 3DEC 3DEC50 Papenumber .2A O Primavera Sysmom. Irw. m X N a Ln 0 to .' 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 ". FIRST NAME: Wal -Mart Real Estate Business Trust STREET: 2001 SE 10th Street CITY: Bentonville Zip: 72716 -0550 FIRM IS: ❑1. Corporation ❑2. Partnership ❑3. Sole Owner ❑4. Association ✓❑5. Other Business Trust 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 "firm ". Name Job Title and City Department (if known) None 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 None 3. State the names of each "board member" of the City of Corpus Christi having an "ownership interest' constituting 3% or more of the ownership in the above named "firm ". Name Board, Commission, or Committee None 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 35 or more of the ownership in the above named "firm ". Name Consultant None CERTIFICATE I certify that all information provided is true and correct as of the date of this statement, that I 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: Brian Hooper Title: Vice President - Real Esta (Type or Print) Signature of Certifying Person: Date: Exhibit 2, p.1 of 2 DEFINITIONS a. "Board Member ". A member of any board, commission, or committee appointed by the City Council of the City of Corpus Christi, Texas. b. "Employee ". Any person employed by the City of Corpus Christi, Texas, either on a full or part - time basis, but not as an independent contractor. C. "Firm ". Any entity operated for economic gain, whether professional, industrial, or commercial and whether established to produce or deal with a product or service, including but not limited to entities operated in the form of sole proprietorship, as self- employed person, partnership, corporation, joint stock company, joint venture, receivership, or trust and entities which, for purposes of taxation, are treated as non - profit organizations. d. "Official ". The Mayor, members of the City Council, City Manager, Deputy City Manager, Assistant City Managers, Department and division Heads and Municipal Court Judges of the City of Corpus Christi, Texas. e. "Ownership interest ". Legal or equitable interest, whether actually or constructively held in a firm, including when such interest is held through an agent, trust, estate, or holding entity. "Constructively held" refers to holding or control established through voting trusts, proxies, or special terms of venture or partnership agreements. f. "Consultant ". Any person or firm, such as engineers and architects, hired by the City of Corpus Christi for the purpose of professional consultation and recommendation. Exhibit 2, p1 of 2