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
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.' 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