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HomeMy WebLinkAbout1923 Authorizing Amendment to Shaw Agreement Final RetainageBILL No. 2023-032 ORDINANCE NO. 1923 AN ORDINANCE AUTHORIZING AN AMENDMENT TQTHE AGREEMENT AUTHORIZED AND APPROVED PURSUANT T0ORDINANCE NO. 1703 TO AMEND THE AGREEMENT FOR FINAL PAYMENT OFRETAINAGE AND CLOSE OUT OF THE GEORGEJ.SHAW CONSTRUCTION CO. CONTRACT WHEREAS. the City of Riverside, Missouri ("City"), by and through the Board of Aldermen's Passage and Approval, and the Mayor's Approval, of Ordinance 1703 on December 24, 2019, found that it was in the best interest of the City to authorize and approve an Agreement by, between and amongst the City, Riverside Horizons LLC. a Missouri limited liability company ("Riverside Horizons'') and NorthPoint Development LLC. Missouri limited liability company (''NorthPoint Development"), for final payment of retainage and close out of the George J. Shaw Construction Co. ("Shaw'') Contract (''Retainage Agreement") attached hereto as Exhibit A, and incorporated herein, and that such approval fulfilled a public purpose, furthered the growth of the City, facilitated the development of the entire Horizons site, improved the environment of the City, fostered increased economic activity within the City, increased employment opportunities within the City, and otherwise has been in the beat interests of the City, and has furthered the health, safety, and welfare of its residents and taxpayers; and WHEREAS, the City authorized the Mayor of the City to execute and deliver the Shaw Agreemant, consistent with the terms of Ordinance 1703, Missouri law, and the terms of the Shaw Agreement, and hereby authorizes the Mayor, the City Administrator, Special Counsel to the City and other appropriate City officials to take any and all actions as may be deemed necessary or convenient to carry out and comply with the intent of that Ordinance and to execute and deliver for and on behalf of the City all certificates, instruments, agreements and other documenta, as may be necessary or convenient to perform all matters herein authorized; and WHEREAS. the City Staff, including the City Engineer and City Administrator, Riverside Horizons and NorthPoint Development recommend an Amendment to the Retainage Agreement be made in which the City'a n*bainage payment obligations pursuant tothe Retainage Agreement be reduced by Five Thousand and 00/100 Dollars ($5,000.00), and Riverside Horizons' and NorthPoint Development's retainage payment obligations pursuant tothe Ratainage Agreement be increased by Five Thousand and 00/100 Dollars ($5,000.00) and that certain obligations of Shaw be waived as described in the City Engineer's Shaw Punchlist Report ("Report"), attached hereto as Exhibit B,and incorporated honein; and. WHEREAS, the Board of Aldermen find it to be in the best interest of the City in order to further the objectives of industrial and economic development of the City, and the terms and conditions of the MDA, as well as in furtherance of the objective to protect the health, safety, and welfare of the businesses and citizens of the City, to approve the recommended amendment to the Agreement authorized and executed pursuant to Ordinance 1703 in order to reduce the City's retainage payment by Five Thousand and 00/100 Dollars ($5,000.00) and to waive certain obligations of Shaw as described in Exhibit B attached hereto and incorporated herein. NOW, THEREFORE, BE[TORDAINED BYTHE BOARD OFALDERMEN OFTHE CITY OF RIVERSIDE, MISSOURI\ AS FOLLOWS: SECTION 1.BEST INTEREST CITY TO AUTHORIZE AND APPROVE. The Board of Aldermen finds that it is in the best interest of the City to authorize and approve to amend the Agreement authorized and approved pursuant to Ordinance 1703 to reduce the City's ratainage payment by Five Thousand and 00/100 Dollars ($5,000.00) and to waive certain obligations of Shaw as described in Exhibit B attached hereto and incorporated herein, and that such approval fulfills a public purpose and will further the growth of the City, facilitate the development of the entire Horizons site, improve the environment of the City, foster increased economic activity within the City, increase employment opportunities within the City, and otherwise is in the best interests of the City, by furthering the health, safety, and welfare of its residents and taxpayers, and the Board of Aldermen does hereby approve the Shaw Agreement. SECTION 2. AUTHORITY GRANTED. The City hereby authorizes the Mayor, the City Administrator, Special Counsel to City and other appropriate City officials to take any and all actions as may be deemed necessary orconvenient ho carry out and comply with the intent ofthis Ordinance and to execute and deliver for and on behalf of the City all myrtifiooteo, inotrumanta, agreements and other documents, as may be necessary or convenient to perform all matters herein authorized. SECTION 3. EFFECTIVE DATE. This Ordinance shall be in full force and effect from and after its passage and approval. BE|TREMEMBERED that the above was read two times byheading only, PASSED AND APPROVED by a majority of the Board of Aldermen and APPROVED by the Mayor of the City of Riverside, Missouri, this 6th day of June 2023. Kathleen L. Rose, Mayor ATTEST: Robin Kincaid, City Clerk Approved as to form Spencer Fane LLP, Special Counsel to the City By Joe Bednar JC 17518673.1 EXHIBIT A ORDINANCE NO. 1703 JC 17518673.1 EXHIBIT B AMENDMENT TO RETAINAGE AND CLOSE OUT AGREEMENT JC I7518673,1 AMENDMENT TO THE RETAINAGE AND CLOSE OUT AGREEMENT This Amended to the Agreement is entered into on the 6th day of June, 2023. by, between and amongst the CITY OF RIVERSIDE, MISSOURI, a fourth-class city duly organized and existing under the Constitution and laws of the State of Missouri (the "City"), RIVERSIDE HORIZONS, LLC, a Missouri limited liability company ("Riverside Horizons") and NORTHPOINT DEVELOPMENT, LLC, a Missouri limited liability company ("NorthPointDevelopment'). The City, Riverside Horizons, and NorthPoint Development collectively are hereinafter referred to as the "Parties". Whereas, In December, 2019. the Parties entered into an Amended and Restated Master Development Agreement ("Amended & Restated MDA") that addressed and resolved certain issues that had arisen involving the development and construction of the project commonly referred to as Riverside Horizons (the "Project"); and Whereas, the George J.Shaw Construction Co ("Shaw Construction") was retained as the general contractor for the construction of the Project ("Shaw Construction Contract"); and Whereas, the City currently holds the sum of $268,000.00 as and for "retainage" for the work that remained to be completed byS haw Construction on the Project ("Shaw Construction Retainage"); and Whereas, the Parties entered into an Agreement in regard to certain revisions to the scope of the Shaw Construction Contract as approved by the City by and through the adoption of Ordinance No. 1703 on December 24, 201 (the "Agreement");and Whereas, certain further revisions to the Agreement's scope of work for the retainage settlement documents for the Shaw Construction Contract are required; and Whereas, to avoid any future misunderstandings or disagreements between the Parties as to the changes to be made to the Shaw Construction Contract, and to ensure the Parties are aware of, and agree to, these changes, the Parties hereby agree to the following as updates to amendment of the previously approved scope of work: 1. The scope of work for the settlement of the final retainage payment for the Shaw Construction Contract was originally agreed upon by, between and amongst the City. Riverside Horizons, and NorthPoint Development in December 2019, and approved by the Board of Aldermen and the Mayor of the City on December 24, 2019, pursuant to Ordinance No. 1703. 2. The Parties have agreed that said scope of work shall be revised and amended in accordance with the terms and conditions set forth in that Ordinance No. 1703 and consistent with the City Engineer's Shaw Punchlist Report ("Report"), attached hereto as Exhibit A.and incorporated herein, which Report updates the status of work to be completed, memorializes the City Staff recommended waiver of certain work requirements of Shaw, and which reduces the City's share of the retainage payment by Five Thousand and 00/100 Dollars ($5,000.00) and increases Riverside Horizon's and NorthPointDevelopment's retainage payment by Five Thousand and 00/100 Dollars ($5,00.00). 3. Upon approval of this Amended Agreement by the City by Ordinance and upon execution by the Parties of this Amended Agreement, Riverside Horizons and NorthPnint Development shall issue a Change Order incorporating scope of work changes contained within the Report and closing out the Shaw Construction Contract ("Revised Shaw Construction Contract"). 4. Within seven (7) calendar days of the City'a receipt of verification by Terracon Consultants, Inc. ("Terracon") that the work required pursuant to the Revised Shaw Construction JC 17518673.1 Contract has been completed ("Engineer's Certification"), the City shall release the total sum of $99,000.00 from the Shaw Construction Rmtainagm. The City shall have no further or additional obligation for the payment for Shaw Construction's work on the Project. 5. Also, within seven (7) calendar days of the receipt by Riverside Horizons and NorthPont Development of the Engineer's Certification, Riverside Horizons and NorthPoint Development will pay Shaw Construction the sum of $109,000.00, which when combined with the City's release of the sum of $208,000.00 of the Shaw Construction Retainage, will constitute full and final satisfaction of all sums due Shaw Construction under the terms of the Revised Shaw Construction Contract. 6. By entering into this Amendment, the Parties acknowledge and agree that the terms and conditions set forth in the Amended & Restated MDA remain in full force and affect and that said terms are wholly unchanged by this Amended Agreement. IN WITNESS WHEREOF the Parties have signed thimArnmmdnmemt to the Agreement msmfthe date set forth above. THE CITY OF RIVERSIDE, MISSOURI Kathleen L. Rose, Mayor RIVERSIDE HORIZONS, LLC, a Missouri limited liability company By: NorthPoint Holdings, LLC,a Missouri limited liability company Its: Manager Nathaniel Hagedorn, Manager NORTHPOINT DEVELOPMENT, LLC a Missouri limited liability company Nathaniel Hagedorn, Manager JC 17518673.1 Contract has been completed ("Engineer's Certification"), the City shall release the total sum of $99,000.00 from the Shaw Construction Rmtainagm. The City shall have no further or additional obligation for the payment for Shaw Construction's work on the Project. 5. Also, within seven (7) calendar days of the receipt by Riverside Horizons and NorthPont Development of the Engineer's Certification, Riverside Horizons and NorthPoint Development will pay Shaw Construction the sum of $109,000.00, which when combined with the City's release of the sum of $208,000.00 of the Shaw Construction Retainage, will constitute full and final satisfaction of all sums due Shaw Construction under the terms of the Revised Shaw Construction Contract. 6. By entering into this Amendment, the Parties acknowledge and agree that the terms and conditions set forth in the Amended & Restated MDA remain in full force and affect and that said terms are wholly unchanged by this Amended Agreement. IN WITNESS WHEREOF the Parties have signed thimArnmmdnmemt to the Agreement msmfthe date set forth above. THE CITY OF RIVERSIDE, MISSOURI Kathleen L. Rose, Mayor RIVERSIDE HORIZONS, LLC, a Missouri limited liability company By: NorthPoint Holdings, LLC,a Missouri limited liability company Its: Manager Nathaniel Hagedorn, Manager NORTHPOINT DEVELOPMENT, LLC a Missouri limited liability company Nathaniel Hagedorn, Manager JC 17518673.1 Shaw scope regarding final/agreed upon punchlist items SHAW CONSTRUCTION CONTRACT CLOSEOUT AGREEMENT - CORRECTIVE ACTIONS TRACKING CHART PROJECT - - - - ISSUE 1. Spec Building #6- 1.(a) Cleanup TASK George J. Shaw Construction will clean up excess pipe and take possession of the pipe to be utilized in the construction of the crossing for the fire hydrant. COMPLETED/WORK REMAINING? completed TASK Northpoint Development will determine who owns any equipment, trailers, misc. steel left on the site and George Shaw will move the trailer to a designated parking spot within the limits of the Horizons Industrial Park COMPLETED/WORK REMAINING? completed TASK Area will be rough graded and dressed up. If stabilization and/or erosion control of this area is required, it will be performed by others outside of George J. Shaw Construction (removed from GJS's scope of work in CO #7.) COMPLETED/WORK REMAINING? completed TASK Upon completion of the area, Northpoint Development will meet, with the city of Riverside, confirm the area is acceptable and will remove "Spec Building #6 cleanup" from the list of remaining work. All agreements will be provided by Northpoint Development and issued to George J. Shaw Construction and signed off by the City of Riverside. All documentation will be distributed via email. COMPLETED/WORK REMAINING? completed TASK Re-distribution of topsoil in this area is excluded as it was removed from GJS's scope of work in CO #10. n/a Shaw scope regarding final/agreed upon punchlist items PROJECT - - - - ISSUE 1.(b) Erosion TASK George J. Shaw Construction will add gabion rock to the washout shown in the photo titled "to be completed prior to retainage Over excavation of these areas or work within the ditch south of spec building #6 is not included. These areas will have received added stone to stabilize the area. COMPLETED/WORK REMAINING? completed TASK If stabilization and/or erosion control of this area is required, it will be performed by others outside of George J. Show Construction (removed from GJSs scope of work in CO #7). COMPLETED/WORK REMAINING? completed TASK Upon completion of the area NorthPoint Development will meet with the city of Riverside, confirm the area is acceptable and will remove "Spec Building #6 erosion" from the list of remaining work. All agreements will be provided by Northpoint Development and issued to George J. Shaw Construction and signed off by the City of Riverside. All documentation will be distributed via email. COMPLETED/WORK REMAINING? completed TASK Re-distribution of topsoil in this area is excluded as it was removed from GJSs scope of work in CO #10. COMPLETED/WORK REMAINING? n/a Shaw scope regarding final/agreed upon punchlist items PROJECT - - - - ISSUE 1.(c) Gate & Crossing for Fire Hydrant TASK George J. Shaw Construction will utilize left over piping materials from Spec Building #6 cleanup as culvert pipes to install the crossing shown in the "to be completed prior to retainage release photo". Crossing will be constructed with soil and silt spoils generated by the regrading operation at 43rd street ditch regrading COMPLETED/WORK REMAINING? completed TASK Northpont Development to provide a detail of the dimensions of the crossing required prior to construction beginning COMPLETED/WORK REMAINING? completed TASK Gate and fencing will be by others outside of George J. Shaw Construction Co. COMPLETED/WORK REMAINING? completed TASK Area will be rough graded and dressed up. If stabilization ond/or erosion control of this area is required, it will be performed by others outside of George J. Shaw Construction (removed from GJS's scope of work in CO #7.) COMPLETED/WORK REMAINING? completed TASK Upon completion of the area, NorthPoint Development will meet with the city of Riverside, confirm the area is acceptable and will remove "Gate & Crossing for Fire Hydrant" from the list of remaining work. All agreements will be provided by Northpoint Development and issued to George J. Shaw Construction and signed off by the City of Riverside. All documentation will be distributed via email COMPLETED/WORK REMAINING? completed TASK Re-distribution of topsoil in this area is excluded as it was removed from GJSs scope of work in CO #10. COMPLETED/WORK REMAINING? n/a Shaw scope regarding final/agreed upon punchlist items PROJECT - - - - ISSUE 1.(d) 41st Street Ditch Grading TASK George J. Shaw will perform re -grading of the area once additional information is provided by Northpoint Development of what is required/what is wrong COMPLETED/WORK REMAINING? waived for jetting the pipe (completed), removing eroded material (completed), and $5000 credit to the City TASK George J. Shaw will not remove any plastic liner in order to complete this work. If additional gabion stone is required to complete this area it will be distributed on top of the existing stone COMPLETED/WORK REMAINING? n/a TASK Area will be rough graded and dressed up. If stabilization and/or erosion control of this area is required, it will be performed by others outside of George J. Shaw Construction (removed from GJS's scope of work in CO #7.) COMPLETED/WORK REMAINING? waived for jetting the pipe (completed), removing eroded material (completed), and $5000 credit to the City TASK Upon completion of the area, Northpoint Development will meet with the city of Riverside, confirm the area is acceptable and will remove "41street ditch grading" from the list of remaining work. All agreements will be provided by Northpoint Development and issued to George J. Shaw Construction and signed off by the City of Riverside. All documentation will be distributed via email COMPLETED/WORK REMAINING? waived for jetting the pipe (completed), removing eroded material (completed), and $5000 credit to the City TASK Re-distribution of topsoil in this area is excluded as it was removed from GJS's scope of work in CO #10 . n/a Shaw scope regarding final/agreed upon punchlist items PROJECT - - - - ISSUE 1.(e) 43rd Street Ditch Grading TASK Re-grading/maintenance grading of the north 43rd street ditch will be completed per the elevations provided in the original Riverside Horizons drawings. Grading will take place in and around the culverts/crossing installed by others along with the new crossing installed by GJS COMPLETED/WORK REMAINING? completed TASK Dewatering will dictate the scheduling of this work as it cannot be done with the standing water in the ditch COMPLETED/WORK REMAINING? completed TASK All silt/spoils generated by this activity will be spread out on the north side ofthe existing ditch. George J. Shaw Construction will not be required to haul spoils off or to any designated locations onsite. COMPLETED/WORK REMAINING? completed TASK Area will be rough graded and dressed up. If stabilization and/or erosion control of this area (or additional area where spoils are spread) is required, it will be performed by others outside of George J. Shaw Construction (removed from GJS's scope of work in CO #7. COMPLETED/WORK REMAINING? completed TASK Upon completion of the area, Northpoint Development will meet with the city of Riverside, confirm the area is acceptable and will remove "43d street ditch regrading" from the list of remaining work. All agreements will be provided by Northpoint Development and issued to George J. Shaw Construction and signed off by the City of Riverside. All documentation will be distributed via email. COMPLETED/WORK REMAINING? completed TASK Re-distribution of topsoil in this area is excluded as it was removed from GJS's scope of work in CO #10. COMPLETED/WORK REMAINING? n/a Shaw scope regarding final/agreed upon punchlist items PROJECT - - - - ISSUE Stacked wall repair at failure TASK As previously discussed George J. Shaw Construction will not complete the work associated with the stacked wall failure but will provide a credit of $60,000 which is the estimate from the Terracon Report. Please note the following: COMPLETED/WORK REMAINING? work was completed by others TASK The "failure" is not due to constructability as it has stood in place along with numerous feet of other walls throughout the site for 5+ years and is outside the contractual warranty period. COMPLETED/WORK REMAINING? n/a TASK Following "a top five wettest year" in the history of Kansas City, we feel the issue with the wall is an issue created by "an act of god" and/or water table fluctuation COMPLETED/WORK REMAINING? n/a TASK Compromising the liner in this area will require mobilization of the liner contractor for extremely minor work (compared to their original scope). COMPLETED/WORK REMAINING? n/a TASK GJS believes it would be prudent to leave the wall area untouched and monitor for any additional movement n/a Shaw scope regarding final/agreed upon punchlist items Following Completion of the "5" items and scopes identified above and providing a wall credit of $60,000.00, GJS will receive the following retainage value within 1 week of completion Retainage Value Owed to George J. Shaw Construction from the original contract ORIGINAL AGREEMENT $268,000.00 AMENDMENT TO AGREEMENT $268,000.00 Wall repair credit from Shaw ORIGINAL AGREEMENT ($60,000.00) AMENDMENT TO AGREEMENT ($60,000.00) Wall repair credit from NorthPoint to City ORIGINAL AGREEMENT ($5,000.00) AMENDMENT TO AGREEMENT ($5,000.00) Retainage Value to be issued by the City of Riverside (City 56%) ORIGINAL AGREEMENT $150,000.00 (56%) AMENDMENT TO AGREEMENT $11,480.00 (56% of $208k less $5k) Retainage Value to be issued by Northpoint Development (NorthPoint 44%) ORIGINAL AGREEMENT $118,000.00 (44%) AMENDMENT TO AGREEMENT $96,520.00 (44% of 208k plus $5k) Total Value of Retainage due to GJS within I week of the 5 items noted above $208,000.00