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HomeMy WebLinkAboutContract 51316 CITY SECRETARY CONTRAACTNO. J 13)G �C2� SETTLEMENT AND RELEASE AGREEMENT 24� BETWEEN THE CITY OF FORT WORTH AND D.R. HORTON- TEXAS,LTD. This Settlement Agreement and Release ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("Fort Worth" or "City"), a home rule municipal corporation located in the state of Texas and situated in portions of Tarrant, Wise, Parker, Johnson and Denton Counties, acting by and through its duly authorized Assistant City Manager, and the D.R. Horton-Texas, Ltd. ("DR Horton"), a Texas Corporation, the state of Texas, acting by and through its duly authorized agent. RECITALS WHEREAS, DR Horton is developing the Villages at Eagle Mountain Lake subdivision near Eagle Pier Way and Tide Lane; and WHEREAS, DR Horton applied for a Phase 1 urban forestry permit to preserve 25 percent of existing tree canopy and to remove the remainder; DR Horton also applied for a Phase 2 urban forestry permit for the required tree planting plan; and WHEREAS, it was confirmed by city staff that contractors working for DR Horton had over-cleared approximately 4,800 square feet of tree canopy in the development in violation of the approved Phase 1 urban forestry permit and the City's Urban Forestry Ordinance, Section 6.302 of the Zoning Ordinance; and WHEREAS, to forever settle claims regarding the tree removal penalties due the City for violations of the urban forestry tree permit and Urban Forestry Ordinance and address the request for additional clearing, DR Horton and the City propose and agree to (a) the replacement of lost canopy plus the planting of trees at a ratio of 5:1 (approximately 28,800 square feet) on the subject property; and maintain and guarantee the survival of the trees for two years in lieu of all other penalties; and (b) payment into the City's tree fund of$11,856 in lieu of all other penalties; and WHEREAS, the City and DR Horton now desire to conclude, settle, release and discharge once and forever, all rights, claims, causes of actions, liabilities, disputes and demands related to the City's claims for penalties due the City from DR Horton's over clearing on the Villages at Eagle Mountain Lake Subdivision, and therefore are desirous of a final negotiated settlement and compromise of their dispute, as more fully set forth herein. NOW THEREFORE, in consideration of the mutual promises described herein, including the Recitals set forth above, which are incorporated herein by reference, the City and DR Horton agree as follows: AGREEMENT A. TERMS. 1. The City and DR Horton have agreed that DR Horton shall plant and maintain approximately 28,800 square feet of replacement canopy and maintain and guarantee the survival of the replacement canopy trees tor two years in tul settlement of past FORT WORTH AND DR HORTON SETTLEMENT AGREEMENT OFFMOIAL RE PAGE 1 CITY SECRETARY 1340.020\75367.1 FT.WORTH,Tx claims regarding violations of the City's Urban Forestry Ordinance on the Villages at Eagle Mountain Lake subdivision development. The trees shall be planted and maintained, as outlined in Exhibit "A", attached and incorporated into this Agreement for all purposes. 2. Not later than November 30, 2018, DR Horton shall complete the planting of the replacement tree canopy as shown and described on Exhibit "A" in compliance with Exhibit "B" hereby made a part of this Agreement for all purposes. If DR Horton fails to meet the November 30, 2018 deadline to complete such plantings, the City has the right to place a hold on all future building permits for the Villages at Eagle Mountain Lake subdivision development until DR Horton complies with the requirements of this Section 2; however, building permits issued on or before November 30, 2018 shall not be affected. 3. DR Horton agrees to make a payment into the City's tree fund of$11,856 no later than 30 days after the execution of this Agreement. 4. The City agrees to immediately release any and all holds on building permits for the Villages at Eagle Mountain Lake subdivision development to the extent such holds are related to the dispute that is the subject of this Agreement. B. RELEASE OF CLAIMS. For and in consideration of the terms and conditions set forth herein, the City hereby RELEASES AND DISCHARGES DR Horton from any and all claims, demands or causes of action at common law, statutory, or otherwise, which the City has, known or unknown, existing at the time of execution of this Agreement related to the violations of the urban forestry permit and any and all provisions of the City's Urban Forestry Ordinance. This release shall be a fully binding and complete settlement between the Parties. Notwithstanding any provision of this Settlement Agreement, the City and DR Horton acknowledge and agree that any future violations of the Urban Forestry Ordinance on the site following the date of the parties' execution of this Agreement may be enforced by the City. C. VOLUNTARY AGREEMENT. This Settlement Agreement is freely and voluntarily given by each party, without any duress or coercion, and after each party has consulted with its counsel. Each party has carefully and completely read all of the terms and provisions of this Settlement Agreement. It is understood and agreed by the City and DR Horton that nothing herein shall be deemed to be an admission of liability by DR Horton with respect to the matter of this Settlement Agreement. D. AUTHORITY. The City and DR Horton represent and warrant to the other that each has the legal right, power and authority to enter into this Settlement Agreement and to perform its obligations hereunder. E. ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST. This Settlement Agreement contains the entire agreement between the City and DR Horton regarding the matters set forth herein, and all prior or contemporaneous agreements, understandings, representations, warranties and statements, oral or written, are merged herein. This Agreement shall be binding upon and inure to the benefit of the administrators, personal representatives,heirs, successors, and assigns of each. FORT WORTH AND DR HORTON SETTLEMENT AGREEMENT PAGE 2 1340.020\75367.1 F. GOVERNING LAW. This Agreement is entered into in the State of Texas and shall be construed and interpreted in accordance with its laws and adjudicated in a state or federal court of competent jurisdiction located in the State of Texas. EXECUTED in duplicate originals on the date hereinafter indicated. D.R. HORTON-TEXAS,LTD., THE CITY OF FORT WORTH a Texas Limited Partnership By: D.R. Horton, Inc., a Delaware Corporation, yAutrized Agent Benjamin Clar Jesus"Jay" Chapa Assistant Vice President Assistant Cit Manager Date: 9 //f8 Date: —�&--/,6 APPROVED AS TO FORM AND LEGALITY: O�•VORr�O Melinda Ramos Sr. Assistant City Attorney I �XAS `�....: . 7-- M&C: 0, 1295: �J OFFICIAL.RECORD CITY SECRETARY FT.WORTHl TX FORT WORTH AND DR HORTON SETTLEMENT AGREEMENT PAGE 3 1340.020\75367.1 EXHIBIT A Plantiniz Plan for Private Property t ISVIld-INIVIN.10A I IOV1.10'3 %' I IIIA u: D DCI F�o< 0]to Z I 2��"I ' - X 0 I J � ' I �Z�O a 31m 3a �- 3NY7 30i, �R 4 JI ¢ F - I i O i I � I - - - - U � Z / e8 • • e s a � ! � a FORT WORTH AND DR HORTON SETTLEMENT AGREEMENT PAGE 4 1340.020\75367.1 EXHIBIT B VILLAGES AT EAGLE MOUNTAIN LAKE PROPERTY SECTION 1. DUTIES AND RESPONSIBILITIES 1.1 DR Horton shall commence and provide such services in accordance with this Agreement and its attachments and all applicable laws. In providing such services, DR Horton shall take such steps, as are appropriate to ensure that the work involved is properly coordinated with any related work performed by the City. 1.2 Any work by DR Horton prior to approval by the City may be ordered stopped at the discretion of the City and subject to removal and replacement by the DR Horton. 1.3 DR Horton represents that it has or will secure, at its own expense, all materials, supplies, machinery, equipment, tools, superintendence, labor, personnel, insurance, and other accessories and services necessary to provide the following improvements to the Villages at Eagle Mountain Lake subdivision("Area"): a. Install and maintain for a two year period as further described herein all planting material in the Area in accordance with the plans on Exhibit "A" of this Agreement. b. As required, DR Horton shall adhere to the Parks and Recreation Department's "Water Conservation/Rationing Procedures". c. DR Horton will provide, at its own expense, all materials, equipment, and labor necessary to provide water to said trees. d. In the event any City owned property such as utilities, equipment, turf, etc. are damaged or destroyed during watering or maintenance of the planting due to the negligence or acts of omission of DR Horton, DR Horton will be responsible for the cost of repair or replacement. e. Collect and properly dispose of all trash, garbage, litter, and debris related to the DR Horton scope of services under this Agreement. SECTION 2. ALTERATIONS AND ADDITIONS 2.1 DR Horton shall not make or cause to be made any alterations, additions, or improvements to the canopy proposed for Villages at Eagle Mountain Lake property depicted in Exhibit A without the prior written consent of the Director, Planning and Development Department. DR Horton shall present to the Director the plans and specifications for such alterations, additions, and improvements at the time such approval is sought. 2.2 Tree canopy to be provided on individuals lots, shall be planted as those lots are developed, and notwithstanding anything to the contrary in this Agreement, the lot owner shall be responsible for maintaining all trees required by this Agreement to be planted and maintained within the platted lot. FORT WORTH AND DR HORTON SETTLEMENT AGREEMENT PAGE 5 1340.020\75367.1 Tidwell, Allison From: Kayser, Mary Sent: Thursday, September 27, 2018 1:58 PM To: Tidwell, Allison Subject: DR Horton settlement Per my phone conversation with Randle Harwood, he will be the contract compliance manager for this agreement. Mary J. Kayser, TRMC MMC City Secretary City Secretary's Office 200 Texas Street Fort Worth, TX 76102 817-392-6161 817-944-8111 (cell) maa.kaysergfortworthtexas. ov i