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HomeMy WebLinkAboutResolution No. 01-15 ORIGINAL Participation Agreement JNC Properties, Inc. Channel 1 Improvements May 7, 2001 CiTY OF T.E COLONY, TEXAS RESOLUTION NO. O/- l ~ A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A PARTICIPATION AGREEMENT BY AND AMONG THE CITY OF THE COLONY, JNC PROPERTIES, INC. AND BCI UTILITY CONSTRUCTION, INC. REGARDING CONSTRUCTION OF PHASE 1 OFFICE CREEK CHANNEL IMPROVEMENTS; AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Manager of the City of The Colony is hereby authorized to execute a Participation Agreement by and among the City of The Colony, JNC Properties, Inc. and BCI Utility Construction, Inc. Section 2. That a tree and correct copy of the Participation Agreement is attached hereto as Exhibit "A" and incorporated herein. Section 3. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas this 7th day of May 2001. William W. Manning, Mayor ATTEST: Pamela J. Russell, Deputy City Secretary APPROVED AS TO FORM~ ~//~ttom~y,-Cityo~;iony -- PARTICIPATION AGREEMENT FOR MEMORIAL DRIVE AREA CONSTRUCTION STATE OF TEXAS § COUNTY OF DENTON § This Agreement (the "Agreement") is made by and among JNC Properties, L.L.C., its successors or assigns ("JNC"), a Texas Limited Liability Company, the City of The Colony (the "City"), a home rule city and political subdivision of the State of Texas, organized pursuant to Article XI, Section 5 of the Constitution of the State of Texas, and BCI Utility Construction, Inc. ("BCI"), a Texas Corporation (JNC, the City, and BCI are hereinafter referred to together as the "Parties"). Recitals It is understood by and among the Parties that this Agreement is applicable to certain tracts of land located within the corporate limits of the City, identified on the Project Area Map ("Project Map") as Tract 1 and Tract 2, said Project Map being hereby attached as Exhibit "A." WHEREAS, the Parties agree that this Agreement involves only Phase 1 of the public works project known as Channel A, Box Culvert at Paige Road Crossing, Channel B-l, and Channel C as generally depicted by the Project Map (such public works hereinafter referred to as the "Improvements"); and WHEREAS, JNC and BCI recognize that the City has an interest in ensuring that the Improvements subject to this Agreement, which will, upon completion and acceptance by the City, become public property, are properly constructed in accordance with construction plans previously approved by the City, and that payment is made therefore; and WHEREAS, the Parties understand and agree that this Agreement is the kind that Section 252 of the Texas Local Government Code requires the City to submit to the competitive sealed bidding process; and WHEREAS, the Parties agree that for various legitimate reasons, the construction project is better served by not submitting the Agreement to the competitive sealed bidding process; and PARTICIPATION AGREEMENT FOR MEMORIAL DRIVE AREA CONSTRUCTION - Page 1 C:~Documents and Settings\TonyXLocal Settings\Temporary Interact Files\OLK3\finaldevelop05-02-01.doc WItEREAS, pursuant to the authority provided for in Section 212.071 of the Texas Local Government Code, the City is expressly authorized to make this Agreement with JNC to construct the public improvements that are subject to this Agreement without submitting the Agreement to the competitive sealed bidding process; and WHEREAS, it is agreed and understood that the City will participate with JNC in the cost of constructing the Improvements subject of this Agreement; and WHEREAS, the Parties understand and agree that pursuant to Section 212.071 of the Texas Local Government Code the City shall participate only up to thirty percent (30%) in the total project cost, which includes the engineering and surveying cost, the Box Culverts for Paige Road Crossing, Channel A, Channel B- 1 and Channel C, as reflected in the Kimley-Hom and Associates' Summary of Total Phasel Project Cost (Exhibit "B," attached and incorporated herein by reference); and WHEREAS, JNC will provide to the City the existing performance bond and payment bond, surety, or irrevocable letter of credit as required by Section 2253.021 of the Government Code guaranteeing and agreeing to pay an amount equal to 100 percent of the value of the construction costs of all the facilities to be constructed by JNC; and WHEREAS, in accordance with Section 212.074 of the Texas Local Government Code, JNC and BCI agree to make available for inspection by the City all books and other records pertaining to the project. Agreements Section 1 JNC's Construction Contract. JNC has awarded a construction contract for construction of the drainage facilities. Said contractor - BCI - is acceptable to the City, and meets City and statutory requirements for being insured, licensed and bonded to perform work in public rights-in-way and to be qualified in all respects to undertake public projects of a similar nature. JNC has furnished to the City the existing required payment and performance bonds prior to the commencement of any work hereunder, and hereby agrees to furnish a policy of public liability insurance in the amounts required by the City's Standard Specifications (COG). Section 2 The Public Improvements Subject to This Agreement are: Channel A, Channel B-1 and Channel C Box Culverts for Paige Road Section 3 Registered Surveyor. It is agreed and understood by the Parties hereto that JNC has employed a registered public surveyor licensed to practice in the State of Texas. PARTICIPATION AGREEMENT FOR MEMORIAL DRIVE AREA CONSTRUCTION - Page 2 CADocuments and Settings\Tony~Local Settings\Temporary Internet Files\OLK3\finaldevelop05-02-01.doc Section 4 Civil Engineer. It is agreed and understood by the Parties hereto that JNC has employed the civil engineering firm of Kimley-Hom and Associates (the "Project Engineer") to design and prepare construction documents for the Improvements contemplated under this Agreement, said engineering firm being currently licensed to provide services in the State of Texas. Unless otherwise specified herein, such plans and specifications shall be in accordance with the City's "Design Standards and Criteria" and the Standard Specifications for "Public Works Construction" (NCTCOG). (a) The Project Engineer has prepared all construction documents required for the bidding and construction of the Improvements, and has obtained approval from the City for the use of said contract documents. Section 5 Project Cost & City's Participation Cost. The Project Engineer has participated in the qualifying contractors, bidding of the work, and award of the construction contract to BCI. Additionally, the Project Engineer did closely examine the bid submitted by BCI and determined that the bid amount was both reasonable and acceptable, and so advised JNC prior to its award of the contract. The Parties understand and agree that the City's total participation cost for this project shall not exceed $233,607.00.~ Section 6 Changes In The Work. Changes in the Work may be accomplished after execution of the Agreement, and without invalidating the Agreement, by Change Order, for a minor change2 in the Work, subject to the limitations stated in the Agreement Documents. (a) Changes in the Work shall be performed under applicable provisions of the Agreement Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, for a minor change in the Work. (b) The parties agree that any Change Order(s) must be prepared by the Project Engineer and agreed upon by the Parties to the Contract. Such Change Order shall state the following: 1. change in the Work; 2. the amount of the adjustment, if any, in the Agreement Sum; and 3. the extent of the adjustment, if any, in the Agreement Time. (c) The Parties agree that if any Change Order(s) becomes necessary, and such Change Order causes the project cost to increase, the City shall be responsible for no more than an additional fifteen percent (15%) of its participation cost. Subject to the Changes In The Work provision of Section 6. The Parties agree that minor change means any change where the associated cost does not exceed $100,000.00. PARTICIPATION AGREEMENT FOR MEMORIAL DRIVE AREA CONSTRUCTION - Page 3 CSDocuments and Settings\Tony\Local Settings\Temporary Interact Files\OLK3~lnaldevelop05-02-01.doc Section 7 Project Administration. The Parties hereby agree that JNC shall provide Project Administration for construction of the Improvements, and in this capacity shall serve as an Agent of the City with full responsibility and authority for discharging its duties, subject to this Agreement. The monetary value of these services shall be considered an in-kind contribution to the project by JNC. JNC hereby appoints William Sheveland to serve as Project Administrator under this Agreement. Section 8 City Payments. Each Pay Request submitted by BCI shall be accompanied by a letter from the Project Engineer stating that the work for which payment is requested has been observed by the writer at the construction site and determined to be accurately represented by that particular Pay Request. JNC shall then immediately transmit the Pay Request and Project Engineer's approval letter to someone designated by the City to receive such information. On or before ten (10) business days following receipt of a properly presented Pay Request, the City shall deliver to JNC a check in the full amount of the Pay Request made out to both BCI and JNC. JNC is hereby authorized to endorse any such check over to BCI, provided, however, that BCI has first delivered to JNC a fully acceptable partial or full and final Waiver and Release of Lien, as appropriate, for BCI and for each of its subcontractors or suppliers providing goods or services relating to the work for which payment is requested. Section 9 Surety Company. Any surety company through which a bond is written shall be a surety company duly authorized to do business in the State of Texas, provided that the City, through the City Manager, shall retain the right to reject any surety company as a surety for any work under this or any other Developer's Agreement within the City of The Colony regardless of such Company's authorization to do business in Texas. Approvals by the City shall not be unreasonably withheld or delayed. Section 10 City's Approvals. Approval by the City Engineer of any engineering design, plans or specifications for construction of the Improvements contemplated under this Agreement shall not be deemed to constitute a release of the responsibility of JNC, BCI and the Project Engineer to ensure that then construction of said Improvements be in strict accordance with City approvals granted, provided, however, that any necessary field changes may be made with prior approval of the City Engineer, or at instruction of the City. Any such changes shall be accurately incorporated in final as-built plans prepared and delivered to the City by BCI. City approvals of project plans and specifications shall signify only that the City Engineer, acting on behalf of the City, concurs in the engineering design criteria used by the Project Engineer and has concluded that all proposed construction documents comply both with City engineering standards and with other City requirements, if any. Section 11 City Acceptance. Acceptance of completed Improvements by the City shall be deemed to have occurred at such time that the City, through its designated representative(s),has inspected and approved the Improvements and issued a Letter of Acceptance addressed to JNC PARTICIPATION AGREEMENT FOR MEMORIAL DRIVE AREA CONSTRUCTION - Page 4 C:~Documents and Settings\Tony~Local Settings\Temporary Internet Files\OLK3~maldevelop05-02-01.doc and BCI jointly at the addresses for each entity shown hereinafter. Said letter of acceptance shall be issued by the City no later than ten (10) business days following staff approval of the completed Improvements, which approval shall not be unreasonably delayed or withheld. Section 12 Encumbrances. It is further agreed and understood by the Parties hereto that upon written acceptance of the Improvements by the City, as provided for in Section 11 of this Agreement, and receipt of such acceptance by JNC and BCI, title to the Improvements shall be vested entirely in the City, whereupon JNC automatically shall be deemed to have relinquished any fight, title or interest in and to said Improvements of any part thereof. Said improvements shall be free and clear of all liens, claims, charges or encumbrances of any kind. It is further understood and agreed that until such time as the City accepts in writing the Improvements, the City shall have no liability or responsibility relating to such Improvements. Section 13 Post Acceptance. If after issuance of the City Letter of Final Acceptance of the Improvements, any lien, claim, charge or encumbrance is either made or found to exist against the Improvements, or against land dedicated to the City within which the Improvements or any portion thereof are located, JNC and BCI, as appropriate, shall, either unilaterally or upon a request from the City: (i) cause any such lien, claim, charge or encumbrance to be satisfied and released; or (ii) promptly post a bond with the City in the amount of any lien, claim, charge or encumbrance to ensure eventual payment. Section 14 Performance Bond. A BCI payment guarantee in the form of an already in force Performance Bond shall be submitted to, and approved by, the City Attorney, which approval shall not be unreasonably delayed or withheld. Such Payment Bond shall remain in force until the Improvements shall have been completed and accepted in writing by the City, and JNC and BCI have complied with the requirements of this Agreement, at which time said Performance Bond shall automatically be deemed unnecessary and subject to being canceled. Said Performance Bond shall provide for payment to JNC of whatever amount of money is required to complete the Improvements in the event BCI fails to do so. In the event that JNC is unable for any reason to complete said Improvements, it is hereby agreed by the Parties that the City shall be entitled and obligated to assume the duties of Project Administration and cause the Improvements to be completed using funds supplied by the bonding company. The Payment Bond shall be furnished solely for the protection of all claimants supplying goods or services used in constructing the Improvements contemplated under this Agreement. Section 15 JNC and BCI's Covenants. JNC and BCI hereby mutually agree and covenant to indemnify, hold harmless and defend the City, its officers, agents, servants and employees, from all claims, law suits or legal causes of action of any kind whatsoever, whether real of asserted, brought for, or on account of, any injury or death to persons or damage to property arising from, or in any way reasonably connected with, work pursued under this Agreement, or arising from a demonstrated failure to reasonably safeguard the work in accordance with prevailing construction industry safety standards, or on account of any act, intentional or otherwise, of proven, neglect or PARTICIPATION AGREEMENT FOR MEMORIAL DRIVE AREA CONSTRUCTION - Page 5 C:~Documents and Settings\Tony~Local Settings\Temporary Internet Files\OLK3\fmaldevelop05-02-01 .doc misconduct by either JNC or BCI and their employees, agents or subcontractors. This indemnification shall cease to have any force or effect on that date upon which the City issues its Letter of Full and Final Acceptance of the Improvements. Section 16 Completion of Improvements. All work performed under this Agreement shall be completed within one year of the date that JNC issues BCI a Letter of Authorization to proceed with said work, provided, however, that in the event BCI or any successor contractor is unexpectedly and unreasonably delayed past one year, whether by inclement weather and/or other circumstances or events outside the control of the Contractor, the Project Administrator shall negotiate with BCI or its successor a reasonable time extension agreement (the "Extension Agreement") acceptable to JNC, BCI and the City. Any such Extension Agreement agreed upon with BCI, or any successor, shall be in compliance with City policies in force at the time the Extension Agreement is executed. Extension Agreement approval shall not be unreasonably withheld or delayed. Section 17 Retainage, Final Payment. The Parties hereby agree that, in order to ensure faithful completion of the Improvements by the contractor, ten percent (10%) of the total contract price for the Improvements shall be withheld until the City has issued unconditionally accepted the Improvements and issued a Letter of Final Acceptance to JNC and BCI. Upon receipt of said letter, JNC is hereby authorized to request from the City payment for the retainage due BCI and make payment to BCI in the manner set forth in Section 8 herein. Retainage shall be set aside incrementally by holding back 10% of each BCI Pay Request payment. Section 18 Maintenance Bond. Prior to City issuance of its Letter of Full and Final Acceptance for the Improvements, BCI shall furnish a one-year maintenance bond ("Maintenance Bond") in form and content acceptable to the City. The amount of the bond shall be 10% of the BCI contract price for the Improvements. The purpose of said Maintenance Bond is to ensure funding for any necessary repair or replacement of any portion of the Improvements within a period of one year following that date upon which said Letter of Full and Final Acceptance is issued. Section 19 Labor and Material Payment Bond. BCI agrees to provide proof that it has obtained a Labor and Material Bond to secure all bills for labor and materials provided by laborers, material men and subcontractors for this project. Section 20 Assignment of Agreement. This Agreement or any part hereof or any interests herein, shall not be assigned by JNC without the express written consent of the City. Section 21 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their respective successors and assigns. PARTICIPATION AGREEMENT FOR MEMORIAL DRIVE AREA CONSTRUCTION - Page 6 C:~Documents and Settings\TonykLocal Settings\Temporary Internet Files\OLK3\finaldevelop05-02-01.doc Section 22 Venue and Governing Law. The Parties herein agree that this Agreement shall be enforceable in Denton County, Texas, and if legal action is necessary in connection therewith, exclusive venue shall lie in Denton County, Texas. The terms and provisions of this Agreement shall be construed in accordance with the laws and court decisions of the State of Texas. SIGNED AND EFFECTIVE on the date last set forth below. JNC Properties, L.L.C. BCI Utility Construction, Inc. a Texas Limited Liability Cooperation By: By: John Lau, Manager Dennis R. Gulley, Vice President Date: Date: City of The Colony By: Patti Hicks, Acting City Manager Attest: Pam Russell, Deputy City Secretary Date: PARTICIPATION AGREEMENT FOR MEMORIAL DRIVE AREA CONSTRUCTION - Page 7 C:~Documents and Settings\Tony~Local Settings\Temporary Internet Files\OLK3~maldevelop05-02-01.doc Chmmel A - Downsl~eam of Palle Ro,d Cro~ ~ [~a ~n~ of Tr~ ~el A H~ Co~e~ C~s~ Co~ ~) $ 71,078.10 ~el A B~ ~ ~~ Cost ~1,0~.78 To~ Anflclpat~ ~nd A Cod (~ Channel B - Upstream ef Pal[e Road CrOssing ~o Inleraeellon with ~1 Chan~¢l B ~ Cmmact Construction Cost r,) $151,917.48 Surveying - BCI $ 1,534.52 En4Pne~ing-ICHA ~t~a~u) $ I6,410.34 ~ ~¢azaan~a/) $ J7.$55.62 Total A~tidpated Cl~a~a~! B Co~t (na=~n $169,900.00 Channel C-* Carries Mows From the Ares South efgR 121 and Upper Watershed Ch~zm~l C BCI Contra~t Coastruction Cod (*) $ 7~,353.45 Sm'veyi~ - BC'I $ 801.55 Totsd Anticipated C2~nn~l C Co~t (nn,,u~ S ~,~00.00 $ BoX Culvert - Carries Flows UDder Palge Rnad/tom Channel B to Cham~el A Box C~tlvert BCI Contact Comlrtmtion Cost ~) $312,543.00 TXU Line D9/41 Relocation Cost a~ em ~ ms~ $294,567.50 Engineering- KI~ ~x~ $ 32.820.69 ~ ~¢~0 $ $4,69#.4Y6 Total Anticipated Box Calvert Cost cn.u~ ~3,100.00, $645,0~.~0 Ch~el B, Chard C & Box Od~ert Corn . ~ (~) ]~t~ Momm ~s o~ty indudc ~ut impmvemeuts ~ C:3~nol A