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City Secretary Contract No.
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AGREEMENT FOR CONSTRUCTION MANAGER-AGENT
CONSTRUCTION SERVICES
FOR FIFTY-FOUR INCH SANITARY SEWER ECFA AND STREETSCAPE ECFA
This AGREEMENT FOR CONSTRUCTION MANAGER-AGENT
CONSTRUCTION SERVICES ("Agreement") is made and entered into by and between the
CITY OF FORT WORTH (the "City"), a home-rule municipal corporation situated in
portions of Tarrant, Denton, Johnson, Parker and Wise Counties, Texas, acting by and through
its duly authorized Assistant City Manager, and COMMERCE CONSTRUCTION CO., L.P.
("Construction Manager"), a California Limited Partnership authorized to do business in the
State of Texas. City and Construction Manager are each individually referred to herein as a
"party" and collectively referred to as the "parties." The term "Construction Manager" shall
include the Construction Manager, its officers, agents, employees and representatives. The term
"City" shall include its officers, employees, agents, and representatives.
WHEREAS, Fort Worth Heritage Development, LLC, a Texas limited liability company
("Developer"), and the City have entered into an Enhanced Community Facilities Agreement in
connection with upsizing and rerouting of a wastewater line generally located along Mule Alley
and southeast to Northeast 23rd Street, City Secretary Contract No. 50814 (the "Sewer ECFA");
and
WHEREAS, Developer and the City will enter into an Enhanced Community Facilities
Agreement in connection with construction of streetscape improvements along East Exchange
Avenue from North Main Street to Packers Avenue (the "Streetscape ECFA"); and
WHEREAS, Construction Manager is an affiliated entity of Developer; and
WHEREAS, Construction Manager shall provide City with consultation, administrative
and management services during the design and construction of the improvements described in
the Sewer ECFA and Streetscape ECFA (collectively, the "ECFAs"); and
WHEREAS, the City's combined participation in the Sewer ECFA, the Streetscape
ECFA, and the Construction Manager Payments as defined herein (collectively, "City
Participation Amount") shall be in an amount up to $7,900,000; and
WHEREAS, the City Council has appropriated funds for the City Participation Amount
by Ordinance No. 22505-11-2016 adopted November 15, 2016 (M &C C-27995); and
WHEREAS, the City has agreed to pay the City Participation Amount as part of a larger
economic development project in the vicinity of the Sewer ECFA and Streetscape ECFA,
specifically the relocation by Rural Media Group, Inc. ("RMG") of its corporate headquarters to
Agreement for Construction Manager-Agent Construction Services—Page I
an approximately 5,250 square foot lease space in the Stockyards Visitors' Center located at 130
E. Exchange Avenue and the relocation of its primary broadcasting studio to the renovated
historic Auction Barn located at 409 E. Exchange Avenue (collectively, the "RMG Sites"), and
WHEREAS, RMG is a leading provider of multimedia content dedicated to the
American rural and Western lifestyle and is the parent company of RFD-TV, RURAL RADIO,
the Cowboy Channel, and RFD-TV The Magazine; and
WHEREAS,the RMG Sites are owned by Developer and will be leased by Developer to
RMG; and
WHEREAS, the City believes that RMG's operations in the Historic Fort Worth
Stockyards will advance the City's goal of ensuring the vitality and preservation of its western
heritage and the continued success and vitality of the Stockyards; and
WHEREAS, Developer helped facilitate RMG's relocation to the RMG Sites and
considers RMG's presence at the RMG Sites as an enhancement to a larger development in the
Historic Fort Worth Stockyards that Developer and its affiliates intend to undertake; and
WHEREAS, without RMG's agreement to relocate and maintain its corporate
headquarters and primary broadcasting studio on the RMG Sites as described in this Agreement,
the City would not have agreed to participate in the cost of the Sewer ECFA, the Streetscape
ECFA, or this Agreement; and
WHEREAS, the City has entered into that certain Tax Increment Financing
Development Agreement with the Board of Directors of Tax Increment Reinvestment Zone No.
15, City of Fort Worth, Texas (the "TIF"), City Secretary Contract No. 50816 (the "TIF
Agreement") under which the City will be reimbursed for the City's Participation Amount; and
WHEREAS, in the event that RMG fails to open and operate its corporate headquarters
and primary broadcasting studio on the RMG Sites as further described in this Agreement and the
ECFAs, the City shall be entitled to reimbursement for the City Participation Amount reduced by
(i) any sums received by the City from the TIF pursuant to the TIF Agreement; and (ii) any sums
paid to the City by other developers and landowners connecting to the sewer improvements
constructed under the Sewer ECFA, if any, under the terms set out in Exhibit B executed by
Developer and the City, up to a maximum reimbursement of $5,000,000 (the "Reimbursement
Payment"), which reimbursement shall be in lieu of any further payments to the City by the TIF;
and
WHEREAS, the City's sole remedy to recover the Reimbursement Payment shall be to
deduct the amount of the Reimbursement Payment from any and all Program Grants otherwise
payable by the City under that certain Economic Development Program Agreement beween the
City and Developer on file in the City Secretary's Office as City Secretary Contract No. 46495
(the "380 Agreement"), as previously amended by City Secretary Contract No. 46495-A1 and
City Secretary Contract No. 46495-A2 (the "380 Amendment No. 2"). The City has waived all
Agreement for Construction Manager-Agent Construction Services—Page 2
other claims against Developer for recovery of all or any part of the Reimbursement Payment;and
WHEREAS, Construction Manager shall have no liability for the Reimbursement
Payment;
NOW, THEREFORE, for and in consideration of the covenants and conditions
contained herein, the City and the Construction Manager do hereby agree as follows:
CONTRACT DOCUMENTS:
The Contract documents shall include the following:
1. This Agreement for Construction Manager-Agent Construction Services
2. Exhibit A—Scope of Services
3. Exhibit B—City Cost Reimbursement Provisions executed by Developer and the City
concerning the Reimbursement Payment
In the event of any conflict between this Agreement and the Exhibits, the terms and
conditions of this Agreement shall control.
1. Scope of Services.
A. Construction Manager shall provide City with consultation, administrative and
management services during the design and construction of the improvements described
in the Sewer ECFA and Streetscape ECFA as described in the Scope of Services, which is
attached hereto as Exhibit A and incorporated herein for all purposes, and further
referred to herein as the "Services." Construction Manager shall perform the Services in
accordance with standards in the industry for the same or similar services and all
applicable federal, state, and local laws, rules,and regulations.
B. In accordance with section 2269.203 of the Texas Government Code, Construction
Manager shall not:
i. self-perform any aspect of the construction work under the ECFAs;
ii. be a party to a construction subcontract for the construction work under the
ECFAs;or
iii. provide performance or payment bonds for the construction work under the
ECFAs.
2. Term.
This Agreement shall commence upon execution by Construction Manager and the City's
Assistant City Manager(`Effective Date") and shall terminate upon final acceptance by the City
of both the Sanitary Sewer ECFA and the Streetscape ECFA (`Exiration Date"), unless
terminated earlier in accordance with the provisions of this Agreement or otherwise extended by
the parties. Acceptance of an ECFA shall occur when the City's Assistant City Manager
Agreement for Construction Manager-Agent Construction Services—Page 3
executes a "green sheet" formally accepting the ECFA. Provided, however, the City's right to
reimbursement for the Construction Manager Payments, as hereafter defined, shall survive the
Expiration Date in accordance with Exhibit B.
3. Compensation.
The City shall pay Construction Manager an amount equal to Six Percent(6%)percent of
the Total Project Cost of the Sewer ECFA and the Streetscape ECFA, as set out in the ECFAs
and modified to reflect actual construction costs, including change orders (the "Sewer
Construction Manaizer Payment" and the "Streetscape Construction Manager Payment",
respectively, collectively referred to as the "Construction Manager Payments"), in accordance
with the provisions of this Agreement.Regardless of the Total Project Cost of the Sewer ECFA
and the Streetscape ECFA, the Construction Manager Payments shall not exceed $447,170.00.
Construction Manager shall not perform any additional services for the City not specified by this
Agreement unless the City requests and approves in writing the additional costs for such services.
The City shall not be liable for any additional expenses of Construction Manager not specified by
this Agreement unless the City first approves such expenses in writing. City agrees to pay the
Sewer Construction Manager Payment to Construction Manager within thirty (30) days after the
City accepts the infrastructure constructed pursuant to the Sewer ECFA. City agrees to pay the
Streetscape Construction Manager Payment to Construction Manager within thirty(30)days after
the City accepts the infrastructure constructed pursuant to the Streetscape ECFA.
All compensation paid by City to Construction Manager shall be subject to the City Cost
Reimbursement Provisions executed by the City and Developer which are attached hereto as
Exhibit B and incorporated herein for all purposes. THE PARTIES EXPRESSLY AGREE
THAT CONSTRUCTION MANAGER SHALL HAVE NO LIABILITY FOR THE
REIMBURSEMENT PAYMENT AS SET OUT IN EXHIBIT B. THE CITY WAIVES ALL
CLAIMS AGAINST CONSTRUCTION MANAGER FOR THE REIMBURSEMENT
PAYMENT.
4. Breach of Contract.
4.1. Breach. If either party commits a material breach of this Agreement, the non-breaching
Party must give written notice to the breaching party that describes the breach in reasonable
detail. The breaching Party shall commence curing such breach within fourteen (14) calendar
days after receipt of such Notice and shall complete the cure within fourteen (14) calendar days
from the date of commencement of the cure; however, if the breach is not reasonably susceptible
to cure by the breaching Party within such fourteen(14) day period,the non-breaching Party shall
not bring any action so long as the breaching Party has commenced to cure the default within
such fourteen (14) day period and diligently completes the work within a reasonable time (not to
exceed an additional thirty(30) days.
4.2 Termination for Breach. If the breaching party fails to cure a material breach within the
stated period of time in accordance with Section 4.1, the non-breaching party may, in its sole
discretion, and without prejudice to any other right under this Agreement, law, or equity,
Agreement for Construction Manager-Agent Construction Services—Page 4
immediately terminate this Agreement by giving written notice to the breaching party. If the City
terminates this Agreement and elects to hire a new construction manager (at the City's option),
the City will hire a new construction manager reasonably acceptable to Developer.
4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior
to the Expiration Date, the City shall pay Construction Manager for services actually rendered up
to the effective date of termination and Construction Manager shall continue to provide the City
with services requested by the City and in accordance with this Agreement up to the effective
date of termination. Upon termination of this Agreement for any reason, Construction Manager
shall provide the City with copies of all completed or partially completed documents prepared
under this Agreement. In the event Construction Manager has received access to City information
or data as a requirement to perform services hereunder, Construction Manager shall return all
City provided data to the City in a machine readable format or other format deemed acceptable to
the City.
5. Confidential Information.
5.1 Confidential Information. The City acknowledges that Construction Manager may use
products, materials, or methodologies proprietary to Construction Manager. The City agrees that
Construction Manager's provision of services under this Agreement shall not be grounds for the
City to have or obtain any rights in such proprietary products, materials, or methodologies unless
the parties have executed a separate written agreement with respect thereto. Construction
Manager, for itself and its officers, agents and employees, agrees that it shall treat all information
provided to it by the City and labeled "Confidential" ("Confidential City Information") as
confidential and shall not disclose any such information to a third party without the prior written
approval of the City, provided, however, "Confidential City Information" does not include
information that has been disclosed to the public by the City or that is subject to disclosure
pursuant to the Act, as hereafter defined, or any other applicable law or court order.
Notwithstanding the foregoing, Construction Manager understands and agrees that the
City is a public entity under the laws of the State of Texas, and as such, is subject to various
public information laws and regulations, including, but not limited to, the Texas Public
Information Act, Chapter 552 of the Texas Government Code (the "Act"). Construction
Manager acknowledges that, under the Act, the following information may be subject to
disclosure: 1) all documents and data held by the City, including information obtained from the
Construction Manager, and 2) information held by the Construction Manager for or on behalf of
City that relates to the transaction of City's business and to which City has a right of access. If
the City receives a request for any documents that may reveal any of Construction Manager's
proprietary information under the Act, or by any other legal process, law, rule, or judicial order
by a court of competent jurisdiction, the City will utilize its best efforts to notify Construction
Manager prior to disclosure of such documents.The City shall not be liable or responsible in any
way for the disclosure of information not clearly marked as "Proprietary/Confidential
Information" or if disclosure is required by the Act or any other applicable law or court order. In
the event there is a request for such information, it will be the responsibility of Construction
Manager to submit reasons objecting to disclosure. A determination on whether such reasons are
Agreement for Construction Manager-Agent Construction Services—Page 5
sufficient will not be decided by the City, but by the Office of the Attorney General of the State
of Texas or by a court of competent jurisdiction.
5.2 Unauthorized Access. Construction Manager shall store and maintain Confidential City
Information in a secure manner and shall not allow unauthorized users to access, modify, delete
or otherwise corrupt Confidential City Information in any way. Construction Manager shall
notify the City immediately if the security or integrity of any Confidential City Information has
been compromised or is believed to have been compromised, in which event, Construction
Manager shall, in good faith, use all commercially reasonable efforts to cooperate with the City
in identifying what information has been accessed by unauthorized means and shall fully
cooperate with the City to protect such information from further unauthorized disclosure.
6. Right to Audit.
Construction Manager agrees that the City shall, until the expiration of three (3) years
after final payment under this Agreement, have access to and the right to examine at reasonable
times any directly pertinent books, documents, papers and records of the Construction Manager
involving transactions relating to this Agreement at no additional cost to the City. Construction
Manager agrees that the City shall have access during normal working hours to all necessary
Construction Manager facilities and shall be provided adequate and appropriate work space in
order to conduct audits in compliance with the provisions of this section. The City shall give
Construction Manager not less than 10 days written notice of any intended audits.
7. Independent Contractor.
It is expressly understood and agreed that Construction Manager shall operate as an
independent contractor as to all rights and privileges granted herein, and not as agent,
representative or employee of the City. Subject to and in accordance with the conditions and
provisions of this Agreement, Construction Manager shall have the exclusive right to control the
details of its operations and activities and be solely responsible for the acts and omissions of its
officers, agents, servants and employees. Construction Manager acknowledges that the doctrine
of respondeat superior shall not apply as between the City, its officers, agents, servants and
employees, and Construction Manager, its officers, agents, servants and employees.
Construction Manager further agrees that nothing herein shall be construed as the creation of a
partnership or joint enterprise between City and Construction Manager. It is further understood
that the City shall in no way be considered a Co-employer or a Joint employer of Construction
Manager or any officers, agents, servants, or employees of Construction Manager. Neither
Construction Manager, nor any officers, agents, servants or employees of Construction Manager
shall be entitled to any employment benefits from the City. Construction Manager shall be
responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any
of its officers, agents, servants and employees.
Agreement for Construction Manager-Agent Construction Services—Page 6
8. LIABILITY AND INDEMNIFICATION.
A. LIABILITY - CONSTRUCTION MANAGER SHALL BE LIABLE AND
RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE
AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS,
OF ANY KIND OR CHARACTER, TO THE EXTENT CAUSED BY THE NEGLIGENT
ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF
CONSTRUCTION MANAGER, ITS OFFICERS, AGENTS, SERVANTS OR
EMPLOYEES.
B. INDEMNIFICATION - CONSTRUCTION MANAGER AGREES TO DEFEND,
INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND
EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS,
ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT
LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING LOST
PROFITS) AND/OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY
RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (n CONSTRUCTION
MANAGER'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT OR (II) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF CONSTRUCTION MANAGER, ITS OFFICERS, AGENTS,
ASSOCIATES, EMPLOYEES, SUBCONTRACTORS, OR CONTRACTORS (OTHER
THAN THE CITY) RELATED TO THE PERFORMANCE OF THIS AGREEMENT;
EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT
APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE AND/OR
WILFULL MISCONDUCT OF THE CITY OR ITS OFFICERS, AGENTS,
EMPLOYEES, OR SEPARATE CONSTRUCTION MANAGERS, AND IN THE EVENT
OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONSTRUCTION
MANAGER AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED
COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE
CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LAWS
OF TEXAS.
9. Assignment and Subcontracting.
Construction Manager shall not assign or subcontract any of its duties, obligations or
rights under this Agreement without the prior written consent of the City and on terms and
conditions acceptable to Construction Manager, the City and the assignee.
10. Insurance.
10.1 The Construction Manager shall carry the following insurance coverage with a company
that is licensed to do business in Texas or otherwise approved by the City:
Agreement for Construction Manager-Agent Construction Services—Page 7
1. Commercial General Liability with a combined limit of not less than $1,000,000 per
occurrence and $2,000,000 aggregate limit.
The policy must have an endorsement (Amendment — Aggregate Limits of Insurance)
making the General Aggregate Limits apply separately to each job site (one for the Sewer
ECFA and one for the Streetscape ECFA).
The Commercial General Liability Insurance policities shall provide "X", "C", and "U"
coverages. Verification of such coverage must be shown in the Remarks Article of the
Certificate of Insurance.
2. Automobile Liability:
A commercial business policy shall provide coverage on "Any Auto", defined as auto
owner, hired and non-owned and shall be in an amount not less than the following
amounts:
$1,000,000 each accident on a combined single limit basis. Split limits are acceptable if
limits are at least:
$250,000 Bodily Injury per person/
$500,000 Bodliy Injury per accident/
$100,000 Property Damage
3. Statutory Workers' Compensation and Employers' Liability Insurance requirements per
the amount required by statute.
10.2 General Insurance Requirements:
1. All applicable policies shall name the City as an additional insured thereon, as its
interests may appear. The term City shall include its employees, officers, officials,
agents, and volunteers in respect to the contracted services.
2. The workers' compensation policy shall include a Waiver of Subrogation (Right of
Recovery) in favor of the City of Fort Worth.
3. A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage
shall be provided to the City. Ten (10) days' notice shall be acceptable in the event of
non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth,
200 Texas Street, Fort Worth, Texas 76102, with copies to the City Attorney at the same
address.
4. The insurers for all policies must be licensed and/or approved to do business in the State
of Texas. All insurers must have a minimum rating of A-VII in the current A.M. Best
Key Rating Guide, or have reasonably equivalent financial strength and solvency to the
satisfaction of Risk Management. If the rating is below that required, written approval of
Risk Management is required.
5. Any failure on the part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirement.
Agreement for Construction Manager-Agent Construction Services—Page 8
6. Certificates of Insurance evidencing that the Construction Manager has obtained all
required insurance shall be delivered to and approved by the City's Risk Management
Division promptly after execution of this Agreement.
11. Compliance with Laws, Ordinances,Rules and Reeulations.
Construction Manager agrees to comply with all applicable federal, state and local laws,
ordinances, rules and regulations. If the City notifies Construction Manager of any violation of
such laws, ordinances, rules or regulations, Construction Manager shall immediately desist from
and correct the violation.
12. Non-Discrimination Covenant.
Construction Manager, for itself, its personal representatives, assigns, and successors in
interest, as part of the consideration herein, agrees that in the performance of Construction
Manager's duties and obligations hereunder, it shall not discriminate in the treatment or
employment of any individual or group of individuals on any basis prohibited by law. If any
claim arises from an alleged violation of this non-discrimination covenant by Construction
Manager, its personal representatives, assigns, or successors in interest, Construction Manager
agrees to assume such liability and to indemnify and defend the City and hold the City harmless
from such claim.
13. Notices.
Notices required pursuant to the provisions of this Agreement shall be conclusively
determined to have been delivered to the other party when (1) hand-delivered. (2) delivered by
facsimile with electronic confirmation of the transmission, or(3) received by United States Mail,
registered, return receipt requested, addressed as follows:
TO THE CITY:
City Attorney's Office
Transportation and Pubic Works Department City of Fort Worth
Attn: Raul Lopez 200 Texas Street
City of Fort Worth Fort Worth,Texas 76102
200 Texas Street
Fort Worth TX 76102
TO CONSTRUCTION MANAGER:
With copies to:
Commerce Construction Co., L.P.
City Manager's Office Attn: Gilbert Mota
City of Fort Worth 131 E. Exchange Ave.. Ste. 212
200 Texas Street Fort Worth,TX 76164
Fort Worth, Texas 76102
Agreement for Construction Manager-Agent Construction Services—Page 9
14. Solicitation of Employees.
Neither the City nor Construction Manager shall, during the term of this Agreement and
additionally for a period of one year after its termination, solicit for employment or employ,
whether as employee or independent Construction Manager, any person who is or has been
employed by the other during the term of this Agreement, without the prior written consent of the
person's employer. This provision shall not apply to an employee who responds to a general
solicitation or advertisement of employment by either party.
15. Governmental Powers and Immunities.
It is understood and agreed that by execution of this Agreement, the City does not waive
or surrender any of its governmental powers or immunities.
16. No Waiver.
The failure of the City or Construction Manager to insist upon the performance of any
term or provision of this Agreement or to exercise any right granted herein shall not constitute a
waiver of the City's or Construction Manager's respective right to insist upon appropriate
performance or to assert any such right on any future occasion.
17. Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State of Texas. If
any action, whether real or asserted, at law or in equity, is brought on the basis 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 Division.
18. Severability.
If any provision of this Agreement is 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.
19. Force Maieure.
The City and Construction Manager shall exercise commercially reasonable efforts to
meet their respective duties and obligations as set forth in this Agreement, but shall not be held
liable for any delay or omission in performance due to force majeure or other causes beyond their
reasonable control (force majeure), including, but not limited to, compliance with any
government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes,
lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental
authority,transportation problems and/or any other similar causes.
Agreement for Construction Manager-Agent Construction Services—Page 10
20. Headings Not Controlling.
Headings and titles used in this Agreement are for reference purposes only and shall not
be deemed a part of this Agreement.
21. Review of Counsel.
The parties acknowledge that each party and its counsel have reviewed this Agreement
and that the normal rules of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement or
exhibits hereto.
22. Amendments.
No amendment of this Agreement shall be binding upon a party hereto unless such
amendment is set forth in a written instrument, and duly executed by an authorized representative
of each party.
23. Entirety of Agreement.
This Agreement, including any exhibits attached hereto and any documents incorporated
herein by reference, contains the entire understanding and agreement between the City and
Construction Manager,their assigns and successors in interest, as to the matters contained herein.
Any prior or contemporaneous oral or written agreement is hereby declared null and void to the
extent in conflict with any provision of this Agreement.
24. Counterparts.
This Agreement may be executed in one or more counterparts and each counterpart shall,
for all purposes, be deemed an original, but all such counterparts shall together constitute one and
the same instrument. An executed Agreement, modification, amendment, or separate signature
page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-
mail, and reflects the signing of the document by any party. Duplicates are valid and binding
even if an original paper document bearing each party's original signature is not delivered.
25. Immigration & Nationality Act.
The City of Fort Worth actively supports the Immigration&Nationality Act (INA) which
includes provisions addressing employment eligibility, employment verification, and
nondiscrimination. Construction Manager shall verify the identity and employment eligibility of
all employees who perform work under this Agreement. Construction Manager shall complete
the Employment Eligibility Verification Form (I-9), maintain photocopies of all supporting
employment eligibility and identity documentation for all employees, and upon request, provide
City with copies of all I-9 forms and supporting eligibility documentation for each employee who
Agreement for Construction Manager-Agent Construction Services—Page 11
performs work under this Agreement. Construction Manager shall establish appropriate
procedures and controls so that no services will be performed by any employee who is not legally
eligible to perform such services. Construction Manager shall provide City with a certification
letter that it has complied with the verification requirements required by this Agreement.
Construction Manager shall indemnify City from any penalties or liabilities due to violations of
this provision. City shall have the right to immediately terminate this Agreement for violations of
this provision by Construction Manager.
26. Informal Dispute Resolution.
Except in the event of termination pursuant to Section 4.2, if either City or Construction
Manager has a claim, dispute, or other matter in question for breach of duty, obligations, services
rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve
the matter through this dispute resolution process. The disputing party shall notify the other party
in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall
state the nature of the dispute and list the party's specific reasons for such dispute. Within ten(10)
business days of receipt of the notice,both parties shall commence the resolution process and make
a good faith effort, either through email, mail, phone conference, in person meetings, or other
reasonable means to resolve any claim, dispute, breach or other matter in question that may arise
out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty
(60)days of the date of receipt of the notice of the dispute,then the parties may submit the matter to
non-binding mediation in Tarrant County, Texas, upon written consent of authorized
representatives of both parties in accordance with the Industry Arbitration Rules of the American
Arbitration Association or other applicable rules governing mediation then in effect. The mediator
shall be agreed to by the parties. Each party shall be liable for its own expenses, including
attorney's fees; however, the parties shall share equally in the costs of the mediation. If the parties
cannot resolve the dispute through mediation, then either party shall have the right to exercise any
and all remedies available under law regarding the dispute. Notwithstanding the fact that the
parties may be attempting to resolve a dispute in accordance with this informal dispute resolution
process, the parties agree to continue without delay all of their respective duties and obligations
under this Agreement not affected by the dispute. Either party may,before or during the exercise
of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for
a temporary restraining order or preliminary injunction where such relief is necessary to protect
its interests. This section shall not be construed to limit the right to or be a pre-requisite for the
parties to file a lawsuit in connection with this Agreement.
27. Third Party Beneficiaries.
The provisions and conditions of this Agreement are solely for the benfit of the City and
Construction Manager, and their lawful successors or assigns, and are not intended to create any
rights, contractual or otherwise, to any other person or entity except for Developer where
indicated.
Agreement for Construction Manager-Agent Construction Services—Page 12
28. Siiinature Authority.
The person signing this agreement hereby warrants that he/she has the legal authority to
execute this agreement on behalf of the respective party, and that such binding authority has been
granted by proper order, resolution, ordinance or other authorization of the entity. Each party is
fully entitled to rely on these warranties and representations in entering into this Agreement or
any amendment hereto.
29. Survival of Provisions.
The parties' duties and obligations pursuant to Section 4.3 (Duties and Obligations), 5
(Confidential Information), Section 6 (Right to Audit), Section 8 (Liability and Indemnification)
and Exhibit B (City Cost Reimbursement) shall survive termination of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
Agreement for Construction Manager-Agent Construction Services—Page 13
Executed in multiples this the t day of 12018.
CITY OF FORT WORTH:
Contract Compliance Manager:
By signing, I acknowledge that I am the
—`� person responsible for the monitoring and
Jesus J. Chapa administration of this contract, including
Assistant City Manager ensuring all performance and reporting
77 requirements.
Date: NO G /
Name:- �pla•
Recommended by: Title: ,
COMMERCE CONSTRUCTION CO.,
Ro turns L.P.
Director of Economic Development
Department By: Commerce C &R, Inc., its
General Partner
APPROVED AS TO FORM AND By:
LEGALITY: John R. Burroughs, PpKdent
By: By:
Richard A. McCracken Name:
Assistant City Attorney Title:
CONTRACT AUTHORIZATION:
M&C: C-28689
Date Approved: 5/15/18
Form 1295: 2018-339142
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City Secretary CO
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Agreement for Construction Manager-Agent Construction Services—Page 14
EXHIBIT A
SCOPE OF SERVICES
Construction Manager shall provide City with consultation, administrative and management
services during the design and construction of the improvements described in the Sewer ECFA
and Streetscape ECFA. Construction Manager's role is only advisory in nature as all contracts
are between Developer and prime contractor(s). Scope of services include, but are not necessarily
limited to, the following:
a) Provide City representation for the entire design and construction phase.
b) Assist with scheduling and coordination.
c) Endeavor to develop consensus with project stakeholders for sequencing of work.
d) Participate in planning sessions, project conferences, design and construction progress
meetings as necessary.
e) Develop a master project schedule with project milestones for all major activities and
track throughout the construction phase.
f) Perform a constructability review of the design.
g) Develop probable construction cost estimates.
h) Prepare Value Engineering recommendations.
i) Manage project documentation.
j) Assist with preparing and managing various prime contractor bid packages.
k) Assist with preparation of bid documents, pre-bid meetings, post-bid meetings and
evaluation of trade contractor bids.
1) Assist with entitlement and permitting related issues.
m) Provide on-site project and field management services.
n) Coordinate general site services with Developer for installation of site logistics and
pedestrian safety items such as fencing, security, temporary wayfinding signage and
pedestrian safety and barricades.
o) Assist with review of progress payments.
p) Assist with project close-out and coordination of multiple trade contractors for final City
Acceptance.
q) Assist with scheduling and coordination of City designated Testing and Inspection
services by 3rd party testing firm(s).
r) Review contractor Change Order Requests and recommend action to City or Developer as
appropriate.
s) Assist the City and/or Developer with dispute resolution as needed.
Agreement for Construction Manager-Agent Construction Services—Page 15
EXHIBIT B
CITY COST REIMBURSEMENT PROVISIONS
A. Because the City's agreement to participate in the Sewer ECFA, the Streetscape ECFA and
this Agreement is based solely on the benefits described in the Recitals of this Agreement,
notwithstanding anything to the contrary elsewhere in this Agreement, the City shall have the
right to recover the Reimbursement Payment (as defined in Section B) on the terms set out in
Section C after all of the following occur in this order: (a) either of the following events
described in subsection (i) or subsection (ii) occurs; (b) the RMG Sites are not reoccupied in
accordance with subsection (iii), and (c) the City provides thirty (30) days written Notice to
Developer, with a copy to Tax Increment Reinvestment Zone No. 15, that the City is entitled
to the Reimbursement Payment(a"Reimbursement Notice"):
(i) RMG fails to open and commence operating its corporate headquarters and its
primary broadcasting studio in the RMG Sites on or before January 1, 2020, and the
failure remains uncured after sixty (60) days following receipt by Developer of
written notice of such failure provided by the City;or
(ii) At any time between the date on which RMG opens and commences operating both
its corporate headquarters and its primary broadcasting studio in the RMG Sites and
the tenth anniversary of such date (the "Ten Year Anniversary"), RMG fails to use
the RMG Sites for its corporate headquarters and its primary broadcasting studio for
more than thirty (30) consecutive calendar days (other than on account of RMG's
temporary displacement caused by a casualty and resulting ongoing repairs or
restoration to the RMG Sites necessitated by such casualty) and RMG fails to
resume using the RMG Sites for its corporate headquarters and primary
broadcasting studio within sixty(60) calendar days following receipt by Developer
of written notice from the City of such failure.
(iii) Developer shall have a period of 120 days after (i) or (ii) occurs to obtain a new
tenant for the RMG Sites whose primary business is operating a rural lifestyle
broadcasting studio. The term of this Agreement shall be extended for a period
equal to the amount of time from the occurrence of(i) or (ii) to the date on which
the RMG Sites are reoccupied.
Agreement for Construction Manager-Agent Construction Services—Page 16
B. The Reimbursement Payment shall be an amount equal to the City Participation Amount,
less (i) all sums received by the City from the TIF under the TIF Agreement; and (ii) all
payments to the City by other developers and landowners of sewer per acre charges or other
payments required as a condition of connecting to the Sewer Improvements pursuant to
Section 35-81, et seq. of the Code of the City of Fort Worth or other generally applicable City
ordinances, if any such payments have been made, provided, however, in no event shall the
Reimbursement Payment under this Agreement, the Streetscape ECFA and the CMA exceed
$5,000,000. The City shall provide an accounting of payments received by the City, if any,
pursuant to subsection(ii)to Developer upon request, but no more often than once per year.
C. Upon receipt of a Reimbursement Notice by Developer and the TIF, the TIF shall cease
making payments to the City pursuant to the TIF Agreement and the City shall be entitled to the
Reimbursement Payment in accordance with this Section C. The City's sole remedy to
recover the Reimbursement Payment shall be to deduct the amount of the
Reimbursement Payment from any and all Program Grants payable by the City under
the Economic Development Program Agreement between the City and Developer dated as
of March 4, 2015 (City Secretary Contract No. 46495), as amended by City Secretary
Contract No. 46495-A1 dated as of May 22, 2017, and City Secretary Contract No.
46495-A2 until the City is reimbursed in full for the Reimbursement Payment. Thereafter,
the City will resume payment of Program Grants to Developer in accordance with the
Economic Development Program Agreement, as amended). The City waives all other claims
aa2ainst Developer for recovery of all or any part of the Reimbursement Payment. The
City waives all claims against Construction Manager for recovery of all or any part of the
Reimbursement Payment.
D. Developer's sole obligations pursuant to this Agreement are its obligations under this
Exhibit B.
E. This Agreement shall terminate terminate upon final acceptance by the City of both the
Sanitary Sewer ECFA and the Streetscape ECFA, unless terminated earlier in accordance with
Section 4.2 of the Agreement; provided, however, if the the Reimbursement Payment has been
triggered under Section A(ii) by RMG's failure to occupy and use the RMG Sites until the Ten
Year Anniversary, the City's remedies under Sections A, B and C shall survive termination.
Agreement for Construction Manager-Agent Construction Services—Page 17
The Agreement will terminate when the City has been reimbursed for the Construction Manager
Payments by the Tax Increment Reinvestment Zone No. 15 or pursuant to this Exhibit B.
F. All capitalized terms not defined in this Exhibit B shall have the meaning set out in the
Agreement.
SIGNATURES APPEAR ON NEXT PAGE
Agreement for Construction Manager-Agent Construction Services—Page 18
CITY OF FORT WORTH: Contract Compliance Manager:
�— By signing, I acknowledge that I am the
person responsible for the monitoring and
Jesus J. Chapa administration of this contract, including
Assistant City Manager ensuring all performance and reporting
/� P requirements.
Date: (Q d b -/8
Recommended by: Name:
Title: N/FiV07 .�• Car
Date:
T—
Robert a Sturns
Director of Economic Development
Department
APPROVED AS TO FORM AND
LEGALITY:
By:
Richard A. McCracken
Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: C"2sdb5
Date Approved: $15116
Form 1295: ZOIb- 339/47
AT T:
�Cy OF Fps
ari Kayser ,f 'O
ity Secretary
AS••
Agreement for Construction Manager-Agent Construction Services—Page 19
FORT WORTH HERITAGE DEVELOPMENT,LLC,
a Texas limited liability company
By: Majestic-Stockyards Investor, LLC,
a Delaware limited liability company,
its managing member
By: Majestic Realty, Co.,
a California corporation,
as authorized agent for the
Manager of Majestic—Stockyards
Investor, LLC
By:
e:
Its: EDWARD o once.a. .�R.
President and Chairman of the Board
Date: T 1
Agreement for Construction Manager-Agent Construction Services—Page 20
M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDAORTWORTII
COUNCIL ACTION: Approved on 5/15/2018
DATE: 5/15/2018 REFERENCE NO.: C-28689 LOG NAME: 06RMG EDPA
EXCHANGE CFA
CODE: C TYPE: NON- PUBLIC CONSENT HEARING: NO
SUBJECT: Authorize Execution of a Construction Manager-Agent Agreement with Commerce
Construction Co., L.P. with a Fee of Six Percent of Construction Costs, in an Amount Not
to Exceed $447,170.00, to Provide Construction Management Services for the Community
Facilities Agreements with Fort Worth Heritage Development, LLC for Construction of
Streetscape Improvements Along E. Exchange Avenue and Waste Water Utilities in the
Vicinity of Mule Alley (COUNCIL DISTRICT 2)
RECOMMENDATION:
It is recommended that the City Council authorize execution of a Construction Manager-Agent
Agreement with Commerce Construction Co., L.P. with a fee of six percent of construction costs, in
an amount not to exceed $447,170.00 to provide construction management services for the
Community Facilities Agreements with Fort Worth Heritage Development, LLC for construction of
streetscape improvements along E. Exchange Avenue and waste water utilities in the vicinity of Mule
Alley.
DISCUSSION:
On November 15, 2016, through M&C C-27995, the City Council authorized the following actions:
(1) Execution of an Economic Develpment Program Agreement (EDPA)with Rural Media Group,
LLC, for the relocation of its corporate headquarters and broadcasting operations to the Fort Worth
Stockyards;
(2) Execution of a Community Facilities Agreement (CFA) with Fort Worth Heritage Development,
LLC, for streetscape improvements to E. Exchange Avenue and waste water improvements in the
vicinity of Mule Alley
(3) Amendment of the EDPA with Fort Worth Heritage Development, LLC (Heritage), City Secretary
Contract No. 46495, to Secure Performance Obligations Under the EDPA and CFA;
(4) Execution of a Tax Increment Financing (TIF) Development Agreement with the Board of
Directors of Tax Increment Reinvestment Zone No. 15 for Reimbursement to the City for Costs of
Those Public Improvements,
(5) Advance Funding by the City for the Public Improvements from TIF Revenues Collected Through
the Remaining Life of the Zone as the Receivable Estimated at $7,900,000.00; and
(6) Adoption of Related Appropriation Ordinances.
The City will execute separate CFAs for the streetscape improvements and the waste water
improvements. The purpose of this M&C is to authorize execution of a Construction Manager-Agent
Agreement with Commerce Construction Co., L.P. (Commerce) to provide construction management
services for the CFAs. The City will pay Commerce a fee in the amount of six percent of the
construction costs for the two CFAs, with the total fee not to exceed $447,170.00. The total amount
the City will pay for the two CFAs and the Construction Manager-Agent Agreement is $7,900,000.00.
The City will be reimbursed for these costs from future tax increment revenues received from
properties in Tax Increment Reinvestment Zone No. 15 (Stockyards/Northside TIF), as provided in a
Tax Increment Financing (TIF) Development Agreement between the City and the TIF's board of
directors.
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=25808&councildate=5/15/2018 7/2/2018
M&C Review Page 2 of 2
City staff has determined that Commerce is the most highly qualified provider of the Construction
Manager-Agent services based on demonstrated competence and qualifications.
The estimated costs of the two CFAs and the Construction Manager-Agent Agreement exceed
$7,900,000.00. Heritage will be responsible for the costs that exceed that amount. Failure of Rural
Media Group to meet its commitments will enable the City to be reimbursed up to $5,000,000.00 for
funds expended on the CFAs and Construction Manager-Agent Agreement that have not been
reimbursed by the TIF.
This project is located in COUNCIL DISTRICT 2.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon the approval of the above recommendation, funds will be
available in the current capital budget, as appropriated, of the Developer Contribution Fund. Prior to
an expenditure being incurred, the participating department has the responsibility to validate the
availability of funds.
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year (Chartfield 2)
FROM
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year (Chartfield 2)
Submitted for City Manager's Office by: Jay Chapa (6122)
Originating Department Head: Randle Harwood (6101)
Additional Information Contact: Janie Morales (7810)
ATTACHMENTS
Form 1295 -Commerce Construction - REV.pdf
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=25808&councildate=5/15/2018 7/2/2018