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HomeMy WebLinkAboutC2011-203 - 3/8/2011 - ApprovedTX — Corpus Christi (Pdal) #1494 -04 AGREEMENT RELATED TO CONSTRUCTION OF ROADWAY IMPROVEMENTS FOR THE STAPLES STREET PROJECT This Agreement Related to Construction of Roadway Improvements for Staples Street, Phase 2, from Barracuda Place to Gollihar Road (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 Staples Street near the intersection with Gollihar Road (the "Parkdale Shopping Center ") 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 No. 6469 for improvements to Staples Street consisting of the construction of Phase 2 from Barracuda Place to Gollihar Road (the "Staples Street Improvements ") and the CITY included in the bid categories "Bid Alternatives No. 1 and No. 4" which requested a bid for any additional cost required to construct and complete the section of work from Carmel Parkway to Everhart Road prior to other sections of the Staples Street Improvements (the "Phasing Alternative"); WHEREAS, the award of the contract for the Staples Street. Drive Improvements (the "Construction Contract ") to the selected contractor, Texas Sterling Construction Co. (the "Contractor "), was approved by the Corpus Christi City Council on March 8, 2011 by Motion No. 2011 -060, 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. 2011 -061 authorizing the City Manager or his designee to award the Phasing Alternative to the Construction Contract; and (ii) Motion No. 2011 -062 authorizing the City Manager or his designee to execute an agreement with WAL -MART for the CITY to require the Contractor to construct the Staples Street 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 the section of work from Carmel Parkway to Everhart Road to be completed prior to the date of expected opening of WAL- MART's planned improvements on its adjacent property; 2011 -203 M2011 -062 03/08/11 Wal -Mart Real Estate Bus. Trust }iQU :3076$65.2 P w v1 u , 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 $125,000 (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 require the Contractor to construct the Staples Street Improvements with the Phasing Alternative and establish the date for completion of the section of work from Carmel Parkway to Everhart Road as October 14, 2011 (which will provide for payment to the Contractor of an amount of $70,000 for completion of the section of work from Carmel Parkway to Everhart Road by October 14, 2011. 3. For purposes of this AGREEMENT, "completion" or "complete" or "completed" shall refer to the point in time when the work for the section of improvements from Carmel Parkway to Everhart Road 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 the section of work from Carmel Parkway to Everhart Road includes all work on Staples Street in between Carmel Parkway and Everhart Road, including the intersection, storm sewer, water lines, curb and gutter, sidewalks and driveways on the side adjacent to the property owned by WAL -MART 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). 4. The Contractor's conditions for completing the section of work between Carmel Parkway and Everhart Road by October 14, 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 140u:3076865.2 Page 3 of 5 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 the section of work between Carmel Parkway and Everhart Road 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 the section of work between Carmel Parkway and Everhart Road of the Staples Street Project 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 Staples Street Project Improvements will be completed by any particular date, including as may be specified in the Early Completion Change Order, or the completion of the Staples Street Project 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 Staples Street Project 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 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 Hou:3076865.2 Page 4 of 5 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. B. 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. 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. HOU:3076865.2 Page 5 of 5 EXECUTED in triplicate this Lday of , 2011. ATTEST: By: Armando Chapa City Secretary APPROVED AS TO FORM: WAI_ -MART: Wal -Mart Real Estate Business Trust 2001 S.E. 10th St. Bentonville, Arkansas 72716 -0550 By: 0 ?AU90 0w Name: Bnan Hoop Title: Vice President, Real Estate CITY OF CORPUS CHRISTI P. O. Box 9277 Corpus Christi, Texas 78469 Telephone: (361) 880 -3500 Facsimile: (361) 880 -3501 By: e ' P "" Ron Olson City Manager This day of , 2011 Veronica Ocanas, Assistant City Attorney For the City Attorney �! f AUTHORIZED cg/"o �! t SECRETAR HOu:3476865.2 TEXAS STERLING CONSTRUCTION CO. April 29, 2011 City of Corpus Christi Engineering Services Department 1201 Leopard Corpus Christi, TX 78401 Attn: Mr. Riaz Ahmed Re: Staples Street, Phase 2 Barracuda Place to Gollihar Road Project No. 6469 Dear Mr. Ahmed, This letter serves to confirm that Texas Sterling Construction Co. agrees to the terms and conditions set forth in the contract documents to change the phasing and accelerate construction of the above referenced project. We understand the details of this agreement to be addressed in alternates 1 and 4 of the bid documents. Please feel free to contact me with any questions or comments. I can be reached at 210 - 340 -2133. Sincerely, Texas Sterling Construction Co. Eric M. Johnson Project Manager PAVING - BRIDGES • LIGHTRAIL • SEWER • WATER 2819 WOODCLIFFE, SUITE 203 • SAN ANTONIO, TX 78230 • (210) 340 -2133 - FAX (210) 340 -8732 An Equal Opportunity Employer 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 -0 550 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 None Job Title and City Department (if known) 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 None Title 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 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 None None Consultant 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: 1 L} ZO 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 commerciai 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.