HomeMy WebLinkAbout1211 HB Construction Contract BILL NO. 2013- 034 ORDINANCE NO. al I I
AN ORDINANCE AUTHORIZING THE AGREEMENT BETWEEN THE CITY OF
RIVERSIDE MISSOURI AND HB CONSTRUCTION, INC., RESULTING IN AN
APPROVED CONTRACT AMOUNT OF $896,972.00 AND AN AGREEMENT
BETWEEN THE CITY OF RIVERSIDE MISSOURI AND HORIZONS WEST LAND LLC
REGARDING WEST SIDE INFRASTRUCTURE IMPROVEMENTS
WHEREAS, the City previously adopted Ordinance No. 1204 authorizing the
construction of the 41 Street West and Helena Road Project (the "Project"); and
WHEREAS, after evaluation and analysis, City Staff is recommending that a
Project Agreement in substantially the same form as Exhibit A of this Ordinance,
attached hereto and incorporated herein, be entered into with HB Construction Inc., for
the installation and construction of the Project upon satisfaction of certain conditions;
and
WHEREAS, the estimated cost of such installation and construction is Eight
Hundred Ninety Six Thousand Nine Hundred Seventy Two Dollars and No Cents
($896,972.00) which costs shall be paid for by and through the successful application
and award of, and subject to the conditions of, the Community Development Block
Grant Program ( "CDBG funds "); and
WHEREAS, any Change Orders that cause the costs of construction of the
Project to exceed said amount of CDBG funds approved for the Project shall be paid by
or through Horizons West Land, LLC ( "HWL "), and
WHEREAS, the City and HWL will enter into an Infrastructure Improvement
Agreement, attached hereto as Exhibit B and incorporated herein, in order to confirm
the funding uses and sources; and
WHEREAS, the parties desire to establish the rights and responsibilities of the
City, HB Construction Inc., and HWL with respect to the construction and funding of the
Project and the Board of Aldermen, upon satisfaction of certain conditions as set out
below, find it is in the best interest of the City in order to further the objectives of
industrial and economic development of the City, and the 41 Street West and Helena
Road Project specifically, to approve the Project Agreement in substantially the same
form as set forth in Exhibit A and the Infrastructure Improvement Agreement in
substantially the same form as set forth in Exhibit B.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF
THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS:
SECTION 1. BEST INTEREST OF THE CITY. It is in the best interest of the
City in order to further the objectives of industrial and economic development of the City
and the 41 Street West and Helena Road Project specifically, to APPROVE the
Project Agreement between the City and KB Construction Inc. in substantially the same
form as set forth in Exhibit A, attached hereto and incorporated herein, for a cost of
such installation and construction of Eight Hundred Ninety Six Thousand Nine Hundred
Seventy Two Dollars and No Cents ($896,972.00) and to APPROVE the Infrastructure
WA 4256332.1
BILL NO. 2013- 034 ORDINANCE NO. I
Improvement Agreement Between Horizons West Land LLC and the City for the
Completion of West Horizons Public Infrastructure, in which the City of Riverside,
Missouri and the Industrial Development Authority of the City of Riverside, Missouri are
Third Party Beneficiaries, in substantially the same form as set forth in Exhibit B,
attached hereto and incorporated herein,(collectively the "AGREEMENTS ") and said
AGREEMENTS are hereby approved and authorized for execution by the Mayor and
further the City Administrator is authorized to issue a Notice to Proceed to HB
Construction upon written confirmation by the City Attorney and Special Counsel to the
City of the satisfaction of the following conditions:
a. HB Construction has secured and submitted to the City a performance
bond satisfactory to the City Attorney, executed by a surety company authorized to do
business in Missouri and having a rating of at least "A +" from Best's, or "AA" from
Standard and Poor's, to show it is solvent, in an amount equal to one hundred percent
(100 % ") of the portion of the contract that does not include the cost of operation,
maintenance and money; and
b. HB Construction has secured and submitted to the City a payment bond
satisfactory to the City Attorney, executed by a surety company authorized to do
business in Missouri and having a rating of at least "A +" from Best's, or "AA" from
Standard and Poor's, to show it is solvent, for the protection of all persons supplying
labor and material to the contractor or its subcontractors for the performance of
construction work provided for in the contract. The bond shall be in an amount equal to
one hundred percent (100 % ") of the portion of the contract price that does not include
the cost of operation maintenance and money; and
c. Execution of the Infrastructure Improvement Agreement, Exhibit B, by the
President of Horizons West Land.
SECTION 2. CONSTRUCTION SAFETY PROGRAM. The project is subject to
the requirements of Section 292.675 RSMo, which requires all contractors or
subcontractors doing work on the project to provide a ten -hour Occupational Safety and
Health Administration (OSHA) construction safety program for their on -site employees
which includes a course in construction safety and health approved by OSHA or a
similar program approved by the department which is at least as stringent as an
approved OSHA program, unless such employees have previously completed the
required program. All employees who have not previously completed the program are
required to complete the program within sixty (60) days of beginning work on such
construction project. Any employee found on a work site subject to this section without
documentation of the successful completion of the course required under subsection 2
of this section shall be afforded twenty (20) days to produce such documentation before
being subject to removal from the project. HB Construction Inc., shall forfeit as a
penalty to the City Two Thousand Five Hundred Dollars ($2,500.00) plus One Hundred
Dollars ($100.00) for each employee employed by HB Construction Inc., for each
calendar day, or portion thereof, such employee is employed without the required
training.
WA 4256332.1
BILL NO. 2013- 034 ORDINANCE NO. 0 .)
SECTION 3. PREVAILING WAGE. The project is subject to the requirements of
Section 29.250 RSMo, which requires the payment of prevailing wage. The City, in
Exhibit C of the Agreement, has specified the prevailing hourly rate of wages for each
type of workman needed to execute the Agreement and also the general prevailing rate
for legal holiday and overtime work.
SECTION 4. AUTHORITY TO EXECUTE. The City and the officers, agents and
employees of the City, including the Mayor, the City Administrator, the City Attorney,
Special Counsel to the City, and Finance Director and other appropriate City officials
are hereby authorized to execute the AGREEMENTS in substantially the same form as
set forth in Exhibits A and B, and to take any and all actions as may be deemed
necessary or convenient to carry out the terms and conditions of the AGREEMENTS
and comply with this Ordinance, and the City Clerk is authorized to attest thereto upon
satisfaction of the above conditions precedent as confirmed by the City Attorney.
SECTION 5. SEVERABILITY CLAUSE. The provisions of this ordinance are
severable and if any provision hereof is declared invalid, unconstitutional or
unenforceable, such determination shall not affect the validity of the remainder of this
ordinance.
SECTION 6. EFFECTIVE DATE. This Ordinance shall be in full force and effect
upon and after its passage and approval.
BE IT REMEMBERED that the above was PASSED AND APPROVED by a
majority of the Board of Aldermen, and APPROVED by the Mayor of the City of
Riverside, Missouri, this4f —day of May, 2013.
•
x
,•
Kathleen L. Rose, Mayor
ATTEST: •
{ • n
x i s SAW D..V %
Robin Littrell,. `Clerk
Approved as to form:
Spencer Fane Britt & Browne LLP,
Special Counsel to the City
by Chad Lamer
WA 4256332.1
INFRASTRUCTURE IMPROVEMENT AGREEMENT
THIS INFRASTRUCTURE IMPROVEMENT AGREEMENT ( "Agreement ") is voluntarily
made and entered into this , ,qg' day of May, 2013, by and between the CITY OF RIVERSIDE,
MISSOURI ( "City"), a city and political subdivision duly organized and existing under the Constitution
and laws of the State of Missouri, and HORIZONS WEST LAND, LLC a limited liability company duly
organized and existing under the laws of the State of Missouri ( "HWL ").
RECITALS
A. WHEREAS, HWL owns Lots 1, 2, 4, 5 and Tract A, and the City owns Lot 3 of
Riverside Horizons West First Plat (collectively the "Platted Land ") which has or will be recorded, and is
attached hereto as Exhibit A; and
B. WHEREAS, HWL, its successors and assigns, has or shall submit certain development
plans, information, and data to the City for the development of Lot 3 of Riverside Horizons West First
Plat ( "Site "); and
C. WHEREAS, HWL has not submitted development plans, information, and /or data to the
City for the development of Lots 1, 2, 4 and 5 of Riverside Horizons West First Plat ( "Future Sites "); and
D. WHEREAS, in order for the Site to be developed, certain public infrastructure
improvements to serve development within the project area must be constructed and/or installed,
including but not limited to: the construction of Helena Road and 41 Street as generally depicted on
Exhibit B ( "Street Infrastructure "); sanitation systems and stormwater systems as generally depicted on
Exhibit C ( "Systems Infrastructure "); and water systems, natural gas, electric and telecommunication
lines and street lights as generally depicted on Exhibit D ( "Utility Infrastructure ") all of which shall be
constructed in accordance with the "Unified Development Ordinance of the City of Riverside" ( "UDO ")
and the "Municipal Code of the City of Riverside, Missouri" ( "Code "); and
E. WHEREAS, collectively the Street Infrastructure and Systems infrastructure are
collectively referred to as the "Public Infrastructure Improvements "; and
F. WHEREAS, the Public Infrastructure Improvements are intended to be connected to
system(s) owned and maintained by the City and are subject to the City's acceptance of such Public
Infrastructure Improvements; and
G. WHEREAS, the Utility Infrastructure is intended to be connected to system(s) owned and
maintained by the various utility providers, and subject to such utility providers acceptance of such Utility
Infrastructure; and
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H. WHEREAS, the Public Infrastructure Improvements and Utility Infrastructure are
collectively referred to as the "Improvements"; and
I. WHEREAS, the City and HWL acknowledge that with the exception of the City's
obligation to administer the Community Development Block Grant ( "CDBG ") and CDBG funds in
accordance with applicable Missouri law, the City has no obligation to provide any Improvements to the
Site or any improvements to Future Sites ( "Future Improvements "); and
J. WHEREAS, application has been made to the Missouri Department of Economic
Development ( "DED ") for CDBG funds, as attached as Exhibit E, to pay for a portion of the engineering,
inspections and construction of the Public Infrastructure Improvements as generally depicted on Exhibit
F (the "CDBG Project "); and
K. WHEREAS, except to the extent CDBG funds are available, HWL, its successors and
assigns shall be solely responsible for payment of the cost of the design and construction of the
Improvements identified in Exhibits B, C and D; and
L. WHEREAS, the UDO and the Code require that the Developer, as defined therein,
( "Developer ") shall be solely responsible for payment of the cost of the Future Improvements for the
development of the Site or Future Sites unless assistance is agreed upon by the appropriate federal, state
or local governmental entity in compliance with applicable federal, state and local laws;
M. WHEREAS, as provided pursuant to this Agreement, the City may require HWL provide
sufficient security to guarantee the satisfactory construction of the Improvements; and should HWL fail to
provide such security, the City may take any reasonable action regarding commencement of construction
of the Improvements including delaying or denying approval; and
N. WHEREAS, the City and HWL, it successors and assigns, acknowledge that additional
Improvements and/or infrastructure not specifically described in this Agreement may be required prior to
the development of the Future Sites ( "Future Improvements "), and further acknowledge that the City has
no obligation to fund or provide any Future Improvements as the UDO and the Code require that the
Developer shall be solely responsible for payment of the cost of the Improvements for the development of
the Site or Future Sites unless assistance is agreed upon by the appropriate federal, state or local
governmental entity in compliance with applicable federal, state and local laws.
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COVENANTS AND AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing recitals, mutual covenants and promises
set forth below, the receipt and sufficiency of which are mutually acknowledged, the City and HWL
hereby agree to this Agreement as follows:
1. Recitals, Exhibits and Definitions
a. Recitals. The Recitals set forth above in this Agreement are incorporated into and made a part
of this Agreement as if fully set forth in this Section a.
b. Exhibits. The Exhibits to this Agreement are incorporated into and made a part of this
Agreement as if fully set forth in this Section b.
c. Improvements and Future Improvements. For the purposes of this Agreement, the
terms "Improvements" and "Future Improvements" shall include any temporary
improvements that may be necessary for construction of the various improvements.
Part I. Site Infrastructure
2. CDBG Project. Expressly subject to the availability of Public Funds and/or CDBG Private Funds (as
hereinafter defined) as applicable, the City shall construct the CDBG Project in accordance with the
provisions of the UDO and the Code.
3. Cost of Improvements. All required Improvements, including labor, materials, and equipment
necessary for construction, shall be paid by HWL, at its sole cost and expense, without reimbursement by
the City or DED except as specifically provided for below. HWL shall reimburse the City for any
engineering costs (including plan checking, inspection, testing, materials furnished, overhead,
construction management, construction observation and any other incidental expenses) incurred by the
City in the processing of this Agreement and in the installation or construction of the Improvements that
exceed the amount of CDBG funds available, but such reimbursement for such engineering costs related
to Bartlett & West Inc., shall not exceed Ten Thousand Dollars ($10,000.00).
a. Public Funds. The City Funds and CDBG Funds (as defined below, which are
sometimes collectively referred to as the "Public Funds ") provided for the CDBG Project
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shall not exceed the amounts described below. Both the City and HWL shall document
the actual use of the Public Funds as required by the DED and applicable law.
i. City Funds. The City shall contribute an amount not to exceed $50,000.00
towards the administration of the CDBG Project ( "City Funds "). To the extent
CDBG Funds are not allocated to the CDBG Project, the City shall have no
further obligation to contribute the City Funds for any portion of the
Improvements and/or Future Improvements.
ii. CDBG Funds. Application has been made to DED for Community
Development Block Grant ( "CDBG ") funds in an amount not to exceed
$1,750,000.00 to be used specifically to construct the CDBG Project. The City
agrees to use the funds in accordance with the application for the CDBG funds
and all applicable laws, including the City's obligation to contract for the
construction and completion of the Improvements.
HWL shall be solely responsible for any and all costs related to the Improvements in
excess of the Public Funds which are reasonably necessary to construct such
Improvements in accordance with all applicable laws.b. Private Funds and Project
Contingency. HWL shall be solely responsible for any and all reasonable and necessary
costs incurred in connection with the construction of the CDBG Project in excess of the
Public Funds ( "CDBG Private Funds "). The total contract award for the selected bid is
at least ten percent (10 %) less than available CDBG Funds, therefore, the City agrees
HWL shall not be required to provide the City with any additional funds at the time of
contract award for the CDBG Project.
c. Change Orders. If a contractor and/or subcontractor constructing any portion of the CDBG
Project submits a written claim or demand for payment of additional costs directly associated
with the construction of the CDBG Project to the City ( "Request for Change Order"), the City
may consult its construction management engineer, the design engineer, and HWL to review and
evaluate such Request for Change Order. If and when the cumulative gross value of these
Requests for Change Orders exceeds the total sum of Fifty Thousand Dollars ($50,000.00), the
City shall consult with HWL prior to exercising its absolute authority in its sole discretion to
approve entering into any written agreement(s) memorializing any equitable adjustment(s) for
payment of the contractor and/or subcontractor's claim ( "Change Order ").
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d. Deposit of Private Funds. In the event the amount of any Change Order(s) causes the total
contract price of the CDBG Project to exceed the Public Funds, HWL shall, upon ten days prior
written notice from the City, immediately make a deposit of CDBG Private Funds into the
Escrow Account in an amount necessary to pay for the then requested Change Order that is in
excess of the remaining Public Funds plus 15% of the total contract price to be used to fund
additional Change Orders.
e. Timing of Deposit of Private Funds. Any CDBG Private Funds required from HWL shall be
provided in full to the City prior to the City approving any Change Order or issuing a notice to
proceed. The City shall place the CDBG Private Funds into the Escrow Account to be drawn
down as necessary for the duration of project construction.
f. Return of Private Funds. If there are any CDBG Private Funds in the Escrow Account
remaining following project completion, the CDBG Private Funds shall be returned to HWL sixty
(60) days following acceptance of the completed construction by the City.
g. No City Liability. In the event HWL fails to deposit the CDBG Private Funds into the Escrow
Account, the City shall have no obligation to authorize any Change Order requested by a
contractor and/or subcontractor as applicable which would exceed any Public Funds or funds
remaining in the Escrow Account, either of which may result in the stoppage or delay on
completion of work until such time as the CDBG Private Funds are deposited into the Escrow
Account. IN NO EVENT SHALL THE CITY INCUR ANY LIABILITY TO HWL FOR ANY
DIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO HWL'S
DELAY OR FAILURE TO DEPOSIT EITHER THE PRIVATE FUNDS OR ADDITIONAL
PRIVATE FUNDS INTO THE ESCROW ACCOUNT.
Part II. Future Improvements
4. Future Improvements. The City and HWL acknowledge that the City has no obligation to provide
any Future Improvements that may be required for the development of the Future Sites, and that no
development of the Future Sites shall be allowed to occur until such time as any necessary Future
Improvements are designed and constructed, at no cost to the City, but in full conformance with the
design standards and specifications established and in use by the City as set forth in the UDO and the
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WA 4281414.1
Code and as reviewed and approved by the City Engineer, or with any changes required or ordered by the
City Engineer which, in his or her opinion, are necessary or required to complete the work.
Nothing in this Agreement shall limit or otherwise restrict City's right to require Future
Improvements; nor shall anything in this Agreement obligate or require the City to provide any
funding for any such Future Improvements. The City has no obligation to design, manage,
construct, provide, fund or pay for any Future Improvements as the UDO and Code require the
Developer to be responsible for the cost of all Future Improvements, however Developer may
receive assistance if such assistance is agreed upon by the appropriate federal, state or local governmental
entity in compliance with applicable federal, state and local laws.
Part III. General Terms and Conditions
5. Indemnification. HWL shall indemnify and save the City and its governing body members, directors,
officers, employees and agents harmless from and against all loss, liability, damage, demand, expense,
penalty, claims for liquidated and /or consequential damages, or fine arising out of HWL's actions or the
actions of HWL's directors, officers, employees, agents and contractors involving the design of the
Improvements and /or the construction and completion of the Utility Infrastructure, or the construction and
completion of any Improvements or Future Improvements HWL may, pursuant to Recital N of this
Agreement contract for in the future, or as a result of any material breach, default or failure to perform by
HWL under this Agreement (collectively referred to as "Claim "). HWL shall also indemnify and save the
City and its governing body members, directors, officers, employees and agents harmless of, from and
against, all costs, reasonable counsel fees, expenses and liabilities incurred by them in any action or
proceeding brought by reason of any such claim. If any action or proceeding is brought against the City
or its governing board members, directors, officers, employees or agents by reason of any such Claim,
HWL, upon thirty (30) days written notice from the City, covenants to defend such action or proceeding
on demand of the City or its governing body members, directors, officers, employees or agents. Nothing
in this section shall constitute a waiver of governmental or officers immunity of the City or its officers or
employees.
6. Dedication of Public Infrastructure Improvements. The City will accept the Improvements for
dedication following construction approval verifying that all such Public Infrastructure Improvements
have been constructed to the City standards and that all the requirements of this Agreement have been
met.
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a. Construction Approval. The Public Infrastructure Improvements must be inspected by the
City prior to acceptance for dedication. The parties agree that nothing in this Agreement shall
obligate or require the City to approve construction of any Future Improvements or to allow the
physical connection of any Future Improvements to the Public Infrastructure Improvements. The
parties further agree that the City shall be entitled to withhold occupancy permits for Future
Improvements until such time as the City approves construction of the Future Improvements.
b. Title to Public Infrastructure Improvements. Title to, and ownership of, all public
improvements constructed by HWL according to this Agreement shall vest absolutely in City or
applicable utility, upon completion and acceptance of such improvements by City or utility as
applicable.
7. Effect of Agreement, Assignment, Modification, Further Assurances
a. Binding Effect of Agreement. This Agreement shall run with the land included within the
Platted Land and shall inure to the benefit of and be binding upon the successors and assigns of
the parties hereto.
b. Transfer of Title. Assignment. HWL shall provide to the City for approval written notice of
any proposed transfer of title to any portion of the Future Sites and/or the HWL's proposed
transfer of its obligations to any successor ( "Successor "). HWL and any successor shall, until
written City approval of the proposed transfer of title and delegation of obligations, be jointly and
severally liable for HWL's obligations under this Agreement.
c. Modification and Waiver. No modification of the terms of this Agreement shall be valid
unless in writing and executed with the same formality as this Agreement, and no waiver of the
breach of the provisions of any section of this Agreement shall be construed as a waiver of any
subsequent breach of the same section or any other sections which are contained herein.
d. Further Assurances. The parties agree to execute such other further documents as may be
necessary to effectuate the purposes of this Agreement or that may be required by law.
IN WPCNESS WHEREOF, the parties have signed this Infrastructure Improvement Agreement as
of the date set forth above.
; 1893 /046 /INFRASTR/00744095;1 1lnfrastructure Improvement Agreement
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"CITY" CITY OF ,RIVERSIDE, MISSURI
By: li
een L. Rose, Mayor
9 +
(SEAL)
.(/
Robin Littrdll, Ci Clerk
STATE OF MISSOURI )
) SS.
COUNTY OF PLATTE )
On this Aeday of 1/4171.0_4*,. l , 2013, before me appeared Kathleen L. Rose, to me
personally known, who, being by me fttlly sworn, did say that she is the Mayor of the CITY OF
RIVERSIDE, MISSOURI, a political subdivision of the State of Missouri, and that the seal affixed to the
foregoing instrument is the seal of said City, and said instrument was signed and sealed in behalf of said
City by authority of its Board of Aldermen, and said individual acknowledged said instrument to be the
free act and deed of said City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County
and State aforesaid, the day and year first above written.,
� t5
Notary u lic
Pu llc
My Commission Expires: �>i p �/�
L isa. F � OBIN L. LITTRELL Pv k-Nary $S f M kteuti, CMpr GYNy Rest of page intentionally left blank nNBlon R 11910871 sul10/6
1 s93 /046/INFRASTRioo744o95; I I Infrastructure Improvement Agreement
WA 4281414.1
"HWL" Horizons West Land, LLC, a Missouri limited
Iiabili compan :
By:
Nariq roc' n
Title: vxc es.r
STATE OF MISSOURI )
) SS.
COUNTY OF Pidtke )
t 1�
On this } day of `
2013, before me appeared NGnnie� � to
me personally known, who, being by me dt y sworn, did say that he is the Th of
Horizons West Land, LLC, a Missouri limited liability company„ and that he is authorized to sign the
instrument on behalf of said company by authority of its members, and acknowledged to me that he
executed the within instrument as said company's free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the
( and State aforesaid, the day and year first a ov written. O
Notary Publi
My Commission Expires:
tYdrx a3I4 LIZASETH R. KNOPF
Notary Public-Notary Seal
STATE OF MISSOURI
Clay County
My Commission Expires Mar. 28, 2014
Commission 8 10521575
1893 /046 /INFRASTR/00744095;I llnfrastructure improvement Agreement
WA 4281414.1
INFRASTRUCTURE IMPROVEMENT AGREEMENT EXHIBITS
Exhibit A: Riverside Horizons West First Plat
Exhibit B: Street Infrastructure
Exhibit C: Systems Infrastructure
Exhibit D: Utility Infrastructure
Exhibit E: CDBG Application
Exhibit F: CDBG Project
(1893/046/INFRASTR/00744095;1 ) WA 4281414.1