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HomeMy WebLinkAboutContract 46503 ary sEmETA d!13 c,�rT CT W3, DEVELOPER AGREEMENT WITH DOWNTOWN FORT WORTH INITATIVES, INC. FOR PEDESTRIAN MITIGATION OF 1sT STREET 11­,THIS AGR.EF, by NT is made and entered into this I U h day of / `��Cl,� 201 and between the CITY OF FORT WORTH, a home-rule municipal corporation of the State of Texas (hereinafter referred to as "City"), acting by and through its duly authorized Assistant City Manager, and DOWNTOWN FORT WORTH INITIATIVES, INC., a Texas nonprofit corporation, (hereinafter referred to as "DFWII"), acting by and through its duly authorized President. WHEREAS, due to the Tower 55 At-Grade Improvements, closure of 1st Street in Downtown Fort Worth is necessary; as mitigation for this closure, Burlington Northern Santa Fe (BNSF) has contributed $750,000.00 to provide pedestrian improvements to mitigate the necessary street closure; and WHEREAS, in 2009, Downtown Fort Worth, Inc. (DFWI) facilitated a number of meetings between Burlington Northern Santa Fe (BNSF), downtown stakeholders and the City of Fort Worth to develop a mitigation strategy for the closure of 1St Street as part of the Tower 55 At-Grade Improvements; and WHEREAS, BNSF agreed to provide DFWII with $750,000 to design and construct pedestrian improvements to mitigate the closure of the 1St Street crossing; and WHEREAS, BNSF paid the City of Fort Worth $750,000 to hold in trust until Tower 55 0 owork proceeded and conditions were appropriate to commence mitigation efforts; and a d WHEREAS, in June 2014, DFWI contacted the City of Fort Worth stating its readiness � to move forward with mitigation; and u`j L-3 u.i oc OFFICIAL RECORD CITY SECRETARY Developer Agreement with DFWII FT.WORTH,TX 1 of 13 WHEREAS, on February 3, 2015, the City Council of the City of Fort Worth approved M&C G-18403 which transferred $750,000 to DFWII for design and construction of pedestrian mobility facilities to mitigate the 1st Street closure due to the Tower 55 project; NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto do hereby covenant and agree as follows: SECTION 1. PROTECT Section 1.1 Construction of pedestrian mobility facilities, within the area shown on the Boundary Map attached as Exhibit A. The project will provide pedestrian improvements as mitigation for the closure of First Street in accordance with the scope of services as defined in Exhibit B. SECTION 2. FUNDING Section 2.1 Total funding for this project shall not exceed $750,000.00. Section 2.2 In 2013, BNSF contributed $750,000.00 to the City of Fort Worth to cover the costs for this project. Section 2.5 Items for which the funding amount for this Agreement are not eligible include, but are not limited to: construction or rehabilitation of private buildings, artwork, fountains, parking garages, earthwork necessary to raise proposed buildings out of the floodplain, and other items not directly related to mobility. Section 2.6 Items for which the funding amount in this Agreement are eligible include, but are not limited to: roadways, intersection improvements, bus stops, sidewalks, shade trees, landscaping, pedestrian/bicycle paths, transit stations and right of way or easements necessary for transportation facilities. Such items must be (a) physically located within or along the limits of the Project or (b) physically contiguous with the street closure and proximal pedestrian pathways, or (c) directly related to either the sidewalk, roadway or rail access necessary to make the Project viable. Developer Agreement with DFWII 2 of 13 SECTION 3. GENERAL CONDITIONS Section 3.1 City shall not be responsible for the cost of any work, including but not limited to any necessary permits, licenses or taxes incurred or required for the Project. Section 3.2 The Project area subject to the scope of services contained in this Agreement must at all times free of mechanics and material men's liens. Section 3.3 Any improvements, additions, alterations and fixtures constructed, placed, or maintained on any part of the publicly owned spaces of the Project Area during the Agreement Term are considered part of the real property of the Project Area and must remain on the Project Area, and title/ownership to all permanent improvements, additions, alterations and fixtures on the publicly owned spaces of the Project area shall vest in the City. SECTION 4. SERVICES PHASES, SCHEDULES AND COMMUNITY FACILITIES AGREEMENT (CFA) Section 4.1 The services to be performed by DFWII shall include the scope of services listed in Exhibit B, attached, incorporated and made a part of this Agreement. Section 4.2 The work for the entire project shall be completed on or before January 1, 2017. DFWII shall be required to pay any additional costs related to the Project if the Project is not completed on or before January 1, 2017. Section 4.3 The City and DFWII will enter into a Community Facilities Agreement (CFA) before undertaking any work on the Project. DFWII will not undertake or cause to be undertaken any work on the Project until the CFA and this Agreement have been executed by all parties and is in full force and effect. DFWII hereby agrees to comply with all terms and conditions of any CFA and this Agreement with the City covering the Project. Section 4.4 The DFWII agrees that infrastructure built with local funds will follow the administrative process and design standards of the City of Fort Worth. If federal funds must be used, the City supports the use of state and federal design guidelines. Developer Agreement with DFWII 3 of 13 SECTION 5. COORDINATION WITH CITY Section 5.1 The City of Fort Worth Planning and Development Department shall be the primary contact and coordinator for the Project. City of Fort Worth shall make available to DFWII for use in performing services hereunder all data in City's possession relative to the Project. SECTION 6. PROGRESS REPORT Section 6.1 City shall coordinate monthly meetings with DFWII, and DFWII shall submit monthly progress reports to City in a format acceptable to the City by the end of each month. SECTION 7. TRANSFER OF AGREEMENT Section 7.1 DFWII shall not assign, sublet or transfer, in whole or in part, its interest in this Agreement without the prior written consent of City. SECTION 8. TERMINATION OF AGREEMENT Section 8.1 All terms, conditions and specifications of the Agreement shall be considered material, and failure to perform any part of the Agreement shall be considered a breach of Agreement. Should DFWII fail to remedy any breach of Agreement within 14 days after written notification to DFWII of the violation, City may, at its option and in addition to any other remedies available to it under law, terminate the Agreement. The Agreement shall not be terminated, however, if DFWII has commenced to cure the breach within said 14-day period, and thereafter pursues such cure with reasonable diligence and in good faith. Upon receipt of such notice of termination and after said 14-day cure period, DFWII shall immediately discontinue all services and work and the placing of all orders or the entering into Agreements for supplies, assistance, facilities, and materials, in connection with the performance of this Agreement and shall proceed to cancel promptly all existing agreements insofar as they are chargeable to this Agreement. Developer Agreement with DFWII 4 of 13 SECTION 9. INDEPENDENT CONTRACTOR Section 9.1 DFWII covenants and agrees that it will perform the work hereunder as independent contractor, and not as an officer, agent, servant, or employee of City. DFWII shall have exclusive control of and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, subcontractors, and consultants; that the doctrine of respondent superior shall not apply as between City and DFWII, its officers, agents, employees, contractors, subcontractors, and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise between City and DFWII. SECTION 10. INDEMNITY AND INSURANCE Section 10.1 Approval by City of this Agreement shall not constitute or be deemed to be a release of the responsibility and liability of DFWII, its officers, agents, employees, contractors and subcontractors for the accuracy and competency of the services performed under this Agreement, including but not limited to surveys, designs, working drawings and specifications and other engineering documents. Such approval shall not be deemed to be an assumption of such responsibility and liability by City for any negligent act, error or omission in the performance of DFWII's professional services or in the conduct of the duties listed in the scope of services listed in Exhibit B. Section 10.2 DFWII AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANYAND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO DFWII AND/OR DEVLOPER'S SUBCONTRACTOR BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCL UDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) DFWII'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii)ANY NEGLIGENT ACT OR OMISSION OF Developer Agreement with DFWII 5 of 13 DFWII, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE PROJECT OR THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH DFWII AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. Section 10.3 DFWII shall not commence work under this Agreement until it has obtained all insurance required under this Article and the City has approved such insurance, nor shall DFWII allow any subcontractor to commence work on its subcontract until all similar insurance of the subcontractor has been so obtained and approval given by the City; provided, however, DFWII may elect to add any sub-consultant as an additional insured under its liability policies. Commercial General Liability $1,000,000 each occurrence $1,000,000 aggregate Automobile Liability $1,000,000 each accident (or reasonably equivalent limits of coverage if written on a split limits basis). Coverage shall be on any vehicle used in the course of the Project. Worker's Compensation Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease -policy limit $100,000 disease - each employee Developer Agreement with DFWII 6 of 13 SECTION 11. RIGHT TO AUDIT Section 11.1 DFWII agrees that City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of DFWII involving transactions relating to this Agreement. DFWII agrees that City shall have access during normal working hours to all necessary DFWII facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. Section 11.2 DFWII further agrees to include in all its subcontracts hereunder a provision to the effect that the subcontracting consultant agrees that City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such contractor, involving appropriate work space, in order to conduct audits in compliance with the provisions of this section together with subsection hereof. City shall give the contractor reasonable advance notice of intended audits. SECTION 12 NOTICES Section 12.1 All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery: City: Downtown Fort Worth Initiatives, Inc. Planning and Development Dept. Planning Director Attn: Sevanne Steiner Attn: Melissa Konur 1000 Throckmorton Downtown Fort Worth, Inc. Fort Worth, TX 76102 777 Taylor Street, Suite 100 Fort Worth, TX 76102 Developer Agreement with DFW11 7 of 13 with a copy to: Attn: City Attorney Controller City Attorney's Office Attn: Brandi Huckabee 1000 Throckmorton Downtown Fort Worth, Inc. Fort Worth, TX 76102 777 Taylor Street, Suite 100 Fort Worth, TX 76102 SECTION 13. RULES AND REGULATIONS Section 13.1 This Agreement will be subject to all applicable federal, state and local laws, ordinances and rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances and zoning regulations, as amended and all federal, state and local provisions and procedures in accordance with the Program. SECTION 14. SEVERABILITY Section 14.1 If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. SECTION 15. PARAGRAPH HEADINGS Section 15.1 Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. SECTION 16. SUCCESSORS AND ASSIGNS Section 16.1 City and DFWII each bind themselves, their successors and assigns, to the other party to this Agreement and to the successors and assigns of each other party in respect to all covenants of this Agreement. Developer Agreement with DFWII 8 of 13 SECTION 17. VENUE-LAW/APPLICABLE LAWS Section 17.1 If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth. This Agreement shall be construed in accordance with the laws of the State of Texas Section 17.2 The laws of the State of Texas shall govern this Agreement and relationship created hereby. SECTION 18. GOVERNMENTAL POWERS Section 18.1 It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. Developer Agreement with DFWII 9 of 13 SECTION 19. EXHIBIT LIST The following exhibits are hereby incorporated into this Agreement: Exhibit A: Boundary Map Exhibit B: Scope of Services IN TESTIMONY WHEREOF, City of Fort Worth has caused this instrument to be signed in quintuplet in its name and on its behalf, by its Assistant City Manager and attested by its City Secretary and Downtown Fort Worth Initiatives, Inc. also has properly executed instrument in triplicate copies each of which is deemed an original. 0 0,/? 00 EXECUTED in the Cit of Fort Worth this 8& day of Marek 2015. Y Cy g o70 CITY OF FORT WORTH ATTEST: 060000000 6isXAS By: Gw�..+�.do�,�� By: t Fernando Costa Assistant City Manager A6S+.+6 City Secretary APPROVED AS TO FORM AND LEGALITY: APPROVAL RECOMMENDED: : By: B Y Y Melinda Ramos Randle Harwood Assistant City Attorney Planning and Development Director DOWNTOWN FORT WORTH INITATIVES, INC. NO M&C REQUIRED B �2 � By: OFFICIAL RECORD AnZdy Taft, President CITY SECRETARY Downtown Fort Worth Initiates, Inc. FT, WORTH, TX Developer Agreement with DFWII 10 of 13 EXHIBIT A BOUNDARY MAP New sidewalk and pedestrian lighting - '" klb ! ! % Sidewalk crossinfs j New expanded sidewalk - 4 as — 7$, 1 27 Developer Agreement with DFWII 11 of 13 EXHIBIT B SCOPE OF SERVICES Downtown Fort Worth Initiatives, Inc. (DFWII) intends to contract with a qualified engineering consulting firm to perform professional engineering design services for pedestrian side walk construction and lighting improvements between I" and 2nd Streets; explore the addition of adding street trees; pedestrian crosswalk improvements at 3rd and Crump Streets; sidewalk construction and pedestrian improvements along 3rd Street under the Burlington Northern Santa Fe (BNSF) railroad crossing. These project areas may change as the project moves forward through the public meeting and city review process. The selected consultant may be asked to design alternative locations within the Boundary Map. Exhibit A shows the Boundary Map location with each of the above project areas shown. The following scope and approach is provided as basic guidance for the project scope. Deliverables will include, but are not limited to construction plans, specifications, estimates (PS&E), and contract documents for letting by the DFWII. The PS&E package construction plans may include, but are not limited to, the following activities at 1St and 2 Streets; pedestrian crosswalk improvements at 3 rd and Crump Streets; and sidewalk construction and pedestrian improvements along 3rd Street under the BNSF railroad crossing. • Demolition of substandard curbs and sidewalks within the project boundaries, as needed; • Construction of sidewalks and curbs within the project boundaries, as needed; • Provide ADA compliant ramps and access and unobstructed sidewalks, truncated domes and landing areas, as needed; • Construction and repair of enhanced crosswalks (up to 10' wide) and associated paving and pavement markings, as needed; • Provide access and connections to existing and proposed bike and pedestrian facilities, as needed; • Replace pavement, as needed; • Install pedestrian countdown signals at signalized intersections, if needed; • Install pedestrian streetlights pursuant to the Downtown Design Standards, if needed • Restripe parking spaces where conflicts with pedestrians occur; and • Coordination with City of Fort Worth, Texas Department of Transportation (TxDOT), Tarrant County, Fort Worth Transportation Authority, railroads, utility companies, and other agencies when applicable. Design and construction standards for the project shall be in compliance with the Texas Department of Transportation and Federal Highway Administration. Responding Consultants should be familiar with those standards and should also be experienced in working on TxDOT projects. Other tasks may include, but are not limited to: ■ Project management ■ Public involvement and meetings Developer Agreement with DFWII 12 of 13 ■ Field surveying and R.O.W. mapping ■ R.O.W. description with metes and bounds ■ Roadway plan and profiles ■ Cross sections ■ Environmental studies ■ Geotechnical investigations and pavement design ■ Subsurface utility investigations ■ Hydrologic and hydraulic studies ■ Culverts ■ Traffic control plans/phasing ■ Storm water pollution prevention Developer Agreement with DFWII 13 of 13