HomeMy WebLinkAboutContract 49882 CITY SECRETARY VI q S S
CONTRACT NO.
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DEVELOPER FUNDING AGREEMENT legs\
FOR
NORTHSIDE II 30-INCH WATER MAIN EXTENSION
ALONG SH 170
This Developer Funding Agreement for Northside II 30-Inch Water Main Extension Along SH
170 ("Agreement") is made and entered into by and between Winner, LLC, a Delaware limited iiability
company, ("Developer") and the City of Fort Worth, Texas ("City") to be effective as of the day of
,�, 2017 ("Effective Date").
WHEREAS, Developer, is the owner of Alliance Gateway North Addition, Block 3, Lots 7R1 and
8R, an Addition to the City of Fort Worth, Tarrant County, Texas, (the "Property"); and
WHEREAS, in order to serve the Property, Developer originally requested a total peak water
demand of 800 GPM (City Secretary No. 46840) and is now requesting an increased total peak water
demand of 2500 GPM (City Secretary No. 46840 A-1); and
WHEREAS, City is in the process of collaborating with Trophy Club MUD#1 (City Secretary No.
41111), and the Town of Westlake, Texas ("Westlake") (City Secretary No. 41112), regarding the
design and construction of a new 30-inch water main, which is estimated to have an associated capacity
of 20.76 MGD, to serve these wholesale customer communities and future development in the City's
northern growth areas ("NS 11 30 WM"); and
WHEREAS, the City is planning to construct the approximately 14,590 linear feet of the NS 11 30
WM as shown in Exhibit "A", attached hereto and incorporated herein by reference ("Project"), along
SH 170 from N. Beach Street to 13590 Denton Hwy ("Westlake's Wholesale Metering Station"); and
WHEREAS, City's estimated total project cost, including but not limited to the estimated total
cost for design, rig ht-of-way/easements, construction, project management and inspection costs for the
NS 11 30 WM is $10,417,800; and
WHEREAS, Developer's Property will be served by the NS 11 30 WM and Developer has agreed
to contribute to the City's design, right-of-way acquisition, construction, project management and
inspection costs of the NS II 30 WM based on its share of the capacity it expects to draw from the
pipeline. The Developer's estimated contribution percentage of the overall costs is 11.80%, the
equivalent to 2.45 MGD of the capacity; and
WHEREAS, as more fully set forth below, Developer will initially contribute $112,600 toward
design ("Developer's Design Cost") and subsequently provide an estimated $1,116,700 toward the
right-of-way acquisition, construction, project management and inspection costs ("Developer's
Construction Cost"). The approximate amount of $1,229,300 is Developer's combined costs for
participation in the Project ("Developer's Combined Costs"), with final costs being calculated upon the
completion of the Project; and
WHEREAS, the determination of the amount of Developer's Combined Costs is not an
as rsuant to Chapter 313 of the Texas Transportation Code; and
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WHEREAS, timing for construction is contingent upon approvals from the Texas Water
Development Board, TXDOT permits, and easement acquisition. The City will use its best efforts and
work diligently to complete the Project;
NOW THEREFORE, in consideration of the above recitals which are incorporated herein, City
and Developer, acting by and through their duly authorized representatives, do hereby agree as follows:
1.
The City is currently designing the NS 11 30 WM. Developer shall deliver the Developer's
Design Cost of$112,600 to the City within 10 business days after the Effective Date. The Developer's
final design costs obligation for design of the Project("Developer's Final Design Cost")will be calculated
and adjusted based on the final verified design costs after the Project is completed.
2.
Developer's payment to the City of Developer's Construction Cost in the amount of$1,116,700
shall be provided not later than 10 business days after the date of the public bid opening for the Project.
The City will provide Developer with prior written notice of the date of the public bid opening to allow
Developer a reasonable amount of time to make a payment to the City for Developer's Construction
Cost. The Developer's final construction costs obligation for right-of-way acquisition, construction,
project management and inspection costs ("Developer's Final Construction Cost') will be calculated
and adjusted based on the final verified construction costs after the Project is completed.
3.
The parties acknowledge that Developer's Combined Costs outlined in Section 1 and Section 2
herein are based on an estimated total project cost. The parties agree that Developer's Final Design
Cost and Developer's Final Construction Cost will be limited to the portion of the NS 1130 Mss capacity
used to provide water for Developer's use of the Property (currently estimated at 11.8%) and as
otherwise allowed under applicable law. This obligation will be calculated and adjusted accordingly
based on final and verified costs of the Project.
The City will provide regular written reports of the status of the public bidding process on a
regular basis to the Developer, including but not limited to any anticipated changes in the estimated
cost of the Project. If the City anticipates a delay or it is anticipated that the public bid is greater than
120% of the estimated total cost of $10,417,800, the City will work in good faith with Trophy Club
MUD#1, Westlake and the Developer to address the total costs of the Project and to agree on how the
costs will be assessed. The City agrees to work collaboratively with all parties to minimize the total
costs for the Project.
Accordingly, if(i) the portion of the NS 1130 WM's capacity used to provide water for Developer's
use of the Property is less than 11.8% of the NS 1130 WM's total capacity; or(ii) if the final project costs
are less than the aforementioned $10,417,800 estimated total cost of the Project, Developer will be
entitled a refund equal to the difference between Developer's Combined Costs and Developer's Final
Cost. Conversely, if(i) the portion of the NS 11 30 WM's capacity used to provide water for Developer's
use of the Property is greater than 11.8% of the NS 11 30 WM's total capacity; or (ii) if the final project
costs are greater than the aforementioned $10,417,800 estimated total cost of the Project, Developer
will pay an additional amount to the city equal to the difference between Developer's Final Cost and
Developer's Combined Cost.
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4.
The City shall move to cause construction of the NS 11 30 WM as soon as is reasonably practical
after the design is completed provided adequate public funds are available, including those funds from
the other participants, Trophy Club MUD#1 and Westlake.
5.
Developer understands and acknowledges that it will, at its own cost, also need to extend a 16-
inch water main from the NS II 30 WM to its Property. The Developer or its representative will submit
its development plan through the City's IPRC Plan Review and enter into a Community Facilities
agreement for this improvement. Until the water improvement is completed and accepted by the City,
the Developer's maximum water rate will remain at 800 GPM as identified in the MOU.
6.
City will use best efforts and work diligently to complete the Project in a timely manner. The
Developer acknowledges that the City cannot guarantee the official construction award date and
construction completion date. City estimates that the portion of the Project from existing connection to
Westport crossing will be completed by August 31, 2018, notwithstanding unforeseen circumstances.
If construction of the aforementioned section of the Project has not commenced by May 31, 2018, the
parties agree to negotiate a new agreement to allow for the construction and payment of the Project.
The City agrees that it will reimburse the Developer for any Projects costs in excess of the Developer's
Combined Costs.
After August 31,2018, if the parties cannot agree to a hew development agreement and the Developer's
portion of the Project is not constructed, then the City shall return all payments made by the Developer
within sixty (60) days after the Developer notifies the City that it no longer wishes to participate in the
Project. Notwithstanding the foregoing, the negotiation of a new development agreement may provide
the option for Developer to construct the Project, but shall in no event be construed as an obligation of
Developer to construct all or any portion of the Project.
7,
The City will use its best reasonable efforts to construct the Project in accordance with the
aforementioned estimated timeline without undue delay, force majeure events notwithstanding. Force
majeure events shall mean that if the performance of any obligation hereunder is delayed by reason of
war, civil commotion, acts of God, strike, inclement weather, shortages or unavailability of labor or
materials, or other similar circumstances which are reasonably beyond the control of the party obligated
or permitted under the terms of this Agreement to do or perform the same, the party so obligated or
permitted shall be excused from doing or performing the same during such period of delay, so that the
time period applicable to such design or construction requirement shall be extended for a reasonable
period of time equal to the period such party was delayed.
8.
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This Agreement shall be binding upon and inure to the benefit of the City and Developer and
their respective successors and assigns. This Agreement, together with any attached exhibits,
supplements the MOU between the parties, as amended, and this Agreement may not be amended or
terminated except in writing, signed by the parties and dated subsequent to the date hereof.
If Developer or any subsequent owner transfers the Property or any portion thereof prior to the
performance of all obligations of the Developer hereunder, Developer or such transferring owner shall
obtain an agreement from the transferee assuming the obligations of the transferring owner under this
Agreement performable from and after the date of transfer. From and after the date of such transfer,
the transferee shall be solely obligated under this Agreement, and the transferring party shall have no
further obligations under this Agreement or any portion thereof transferred.
9.
The City acknowledges that some information related to this Agreement may be considered
confidential. Developer acknowledges and agrees that the City is subject to the Texas Public
Information Act, Texas Government Code Chapter 552. The parties previously executed that certain
Single Party Non-Disclosure Agreement between the City and Developer dated as of April 29, 2015
that is on file in the City Secretary's Office as City Secretary Contract No. 46664 ("NDA"), the contents
of which are incorporated by reference to the same extent as if set forth fully herein. The parties agree
to comply with the terms and conditions of the NDA as it relates to the rights, obligations, documents
and/or information contained in this Agreement.
10.
Developer acknowledges that to the extent deemed applicable, Developer will comply with
Chapter 2270 of the Texas Government Code.
[Signatures appear on the following page.]
Executed by each party's duly designated and authorized representative:
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Developer: City:
WINNER, LLC, CITY OF FORT WORTH, TEXAS
a Delaware limited liability company
Name: Jesus J. Chapa
Title: P2ffj&i2 10 2 L.�17V& Assistant City Manager
Date: !1 I'7 i� Date:_ /�� 7 �-7
oer,t Recommended By:
tega�
KWh uror
Acting tor, Water Department
APPROVED AS TO FORM ATTEST:
AND LEGALITY
rista R. Lopez- eynolds ary ay
Sr. Assistant City ey City Secretary
Contract Compliance Manager:
By signing,I acknowledge that I am the person responsible for the monitoring and administration of this
Contra- III including ens ;g all pe iormance and reporting requirements.
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Name of Employee
Title �v
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