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Home My WebLink AboutContract 53427 CITY SECRETARY CONTRACT NO. FUTURE IMPROVEMENTS AGREEMENT FOR INFRASTRUCTUREIMPROVEMENTS PAVING, DRAINAGE, AND STREET LIGHT IMPROVEMENTS FOR PARK DRIVE AMENDING CSC 51714 This FUTURE IMPROVEMENTS AGREEMENT ("Agreement"), is made and entered into by and between the City of Fort Worth ("City"), a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and D.R. Horton—Texas, LTD("Developer"), a Texas limited partnership, acting by and through its duly authorized representative. City and Developer are referred to herein individually as a "party" and collectively as the "parties." WHEREAS, the City and Developer entered into a Community Facilities Agreement for the construction of public infrastructure improvements for a project generally described as Twin Mills Phase 4, City Secretary Contract Number 51714 ("CFA"); and WHEREAS, Developer has constructed the majority of the improvements required under the CFA; and WHEREAS, the City has a capital improvement project for the Eagle Mountain to Big Fossil Diversion Force Main, City Project Number CPN 01309, for the installation of a sanitary sewer line that includes installation underneath a portion of Park Drive that the Developer is constructing pursuant to the CFA ("City Improvements); and WHEREAS, it is necessary for the City to delay Developer's completion of paving and streetlight improvements on a portion of Park Drive described in the CFA and shown on Exhibit A attached hereto ("Remaining Developer Improvements") due to the construction of the City Improvements; and WHEREAS, the City and Developer agree that in order to avoid delaying Developer's private project, the City will construct the Remaining Developer Improvements after the City completes the City Improvements, in lieu of Developer constructing the Remaining Developer Improvements pursuant to the CFA; and WHEREAS, Developer will pay to the City the estimated funds Developer would have spent to construct the Remaining Developer Improvements pursuant to the CFA in the amount of $165,634.96, as described in Exhibit B attached hereto (the "Future Improvements Funds"); WHEREAS, the determination of the amount of the Future Improvements Funds is not an assessment pursuant to Chapter 313 of the Texas Transportation Code; UFr',1t.��'A L RECOIRD Future Improvements Agreement—Park Drive Paving and Streetlights CITY SECRETARY D.R. Horton—Texas, Ltd. Page 1 of 7 " zWORTH,T NOW THEREFORE, in consideration of the above recitals, incorporated herein for all purposes, City and Developer, acting by and through their duly authorized representatives, do hereby agree as follows: 1. Future Improvements Funds Concurrently with the execution of this Agreement, Developer has paid the Future Improvements Funds to the City. The Future Improvements Funds shall serve as the entire amount of Developer's contribution for the cost to construct the Remaining Developer Improvements. Upon delivering the Future Improvements Funds to the City and executing this Agreement, Developer will have no further obligation to pay any amounts in addition to the Future Improvements Funds or take any further action with regard to the construction of the Remaining Developer Improvements, even if: (a) the actual costs to construct the Remaining Developer Improvements exceed the Future Improvements Funds; (b) the specifications, composition, or other characteristics of the Remaining Developer Improvements hereafter change for any reason; (c) a mistake has been made (mutual or unilateral) in computing the cost of constructing the Remaining Developer Improvements; or (d) the costs or scope of the Remaining Developer Improvements changes for any reason. 2. Construction by City The City will construct the Remaining Developer Improvements in connection with construction of the City Improvements. 3. Amendment of CFA The City and Developer have executed change orders to the CFA to eliminate Developer's obligation to construct the Remaining Developer Improvements . 4. Applicable Law; Venue This Agreement shall be construed under and in accordance with Texas law. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. Future Improvements Agreement—Park Drive Paving and Streetlights D.R. Horton—Texas, Ltd. Page 2 of 7 5. Headings The paragraph headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 6. Severability In the event that any clause or provision of this Agreement shall be held to be invalid by any court of competent jurisdiction, the invalidity of such clause or provision shall not affect any of the remaining provisions hereof. 7. Review of Counsel City and Developer, and if they so choose, their attorneys, have had the opportunity to review and comment on this Agreement; therefore any rule of contract construction or interpretation that would normally call for the document to be interpreted as against the drafting party shall not apply in interpretation of this Agreement, and each section, portion, and provision of this Agreement shall be construed solely on the basis of the language contained therein, regardless of who authored such language. 8. Amendment No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the City and Developer. 9. No Third-Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of the City and Developer, and any lawful assign or successor of Developer, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 10. Signature Authority The person signing this Agreement on behalf of Developer warrants that he or she has the legal authority to execute this Agreement on behalf of the Developer, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The City is fully entitled to rely on this warranty and Future Improvements Agreement-Park Drive Paving and Streetlights D.R. Horton-Texas, Ltd. Page 3 of 7 representation in entering into this Agreement. 11. Counterparts This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. 12. Entire Agreement This written instrument (together with any attachments, exhibits, and appendices) constitutes the entire understanding between the City and Developer, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. [REMAINDER OF PAGE INTENTIONALLY BLANK] Future Improvements Agreement-Park Drive Paving and Streetlights D.R. Horton-Texas, Ltd. Page 4 of 7 IN WITNESS WHEREOF, the City and Developer have each executed this Agreement by their duly authorized signatories to be effective on the date executed by the City's Assistant City Manager. CITY OF FORT WORTH DEVELOPER: D.R. Horton —Texas, Ltd., a Texas Limited Partnership By: D.R. Horton, Inc., a Delaware Corporation, its��rized Agent Dana Burghdoff Name: enjamin -.ark Interim Assistant City Manager Title: Assistant Vice President I/21/ 20 t IMF ?,oZo Date Date Recommended wy: S Evelyn o erts Jennifer Ezernack Project Assistant Planning and Development APPROVED AS TO FORM AND LEGALITY Richard A. McCracken Sr. Assistant City Attorney �^ 1MtQ- N//4 F..r-.. 12 9 5'. .v/A- 0* � fir Contract Compliance Manager: ATTEST: r Wig; By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring .. all performance and reporting requirements. .............. Mary J. er ald Gonzale City Secr ry/Asst. City Secretary N e: Jar46 Sca�rleqt Morales Tit e: Development Manager - OFFIUAL REC ?RD Future Improvements Agreement—Park Drive Paving and Streetlights CITY SECRETARY D.R. Horton—Texas, Ltd. Page 5 of 7 �= � EXHIBIT A Future Improvements Agreement-Park Drive Paving and Streetlights D.R. Horton-Texas, Ltd. 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