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HomeMy WebLinkAboutContract 32290 AMENDMENT NO. 2 TO ECONOMIC AND COMMUNITY DEVELOPMENT AGREEMENT This AMENDMENT NO. 2 TO ECONOMIC AND COMMUNITY DEVELOPMENT AGREEMENT ("Amendment") is made and entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation organized under the laws of the State of Texas, and S07 #1, L.P. ("Developer"), a Texas limited partnership. RECITALS A. The City and Developer have entered into that certain Economic and Community Development Agreement (the "Agreement") generally known as "South of Seventh", defined in the Agreement as the "Project". The first phase of the Project is defined in the Agreement as "Phase I". The Agreement is a public document on file in the City Secretary's Office as City Secretary Contract No. 31772, as amended. B. As part of the Project, Developer is constructing a road (currently identified as Museum Way) that will serve the townhomes and townhome sites developed during Phase I of the Project (the "Initial Spine Road"), as more specifically outlined in City Secretary Contract No. 29230, a Community Facilities Agreement between the City and Developer. The Initial Spine Road will cross certain Fort Worth & Western Railroad tracks that bisect Developer's Property (the"Railroad Property"). C. Pursuant to and in accordance with the Agreement, the City has agreed to reimburse Developer a portion of the cost of construction of the Initial Spine Road (the "Phase I Reimbursement"). D. In order to facilitate construction of the Initial Spine Road and its crossing over the Railroad Property, the City agreed to use its best efforts to acquire the Railroad Property from its owner (the "Railroad Owner") through the City's power of eminent domain. A Property Acquisition Agreement between the City and Developer, attached to the Agreement as Exhibit "D" (the "Property Acquisition Agreement"), more specifically outlines the terms and conditions pursuant to which the City will exercise its power of eminent domain in order to acquire the Railroad Property. The Railroad Property is more specifically defined in the Property Acquisition Agreement. E. Two legal actions were subsequently filed relative to the City's exercise of its power of eminent domain to acquire the Railroad Property. Those actions are Fort Worth & Western Railroad Co. v. City of Fort Worth, Case No. 4-03CV-0319-Y (Fifth Circuit Court of Appeals Case No. 04-10433), and City of Fort Worth v. ar or7h._ Western Railroad, City of Fort Worth, Texas, Fort Worth Independent 5 7hool District,'����"C and Tarrant County, Texas (the "Legal Actions"). f g L.G�c Page 1 Amendment No.2 to Economic and Community Development Agreement between City of Fort Worth and S07#i,L.P. F. The City has settled the Legal Actions as part of a larger settlement involving other real property matters between the City and the Railroad Owner (the "Settlement"). Pursuant to the Settlement, the Railroad Owner consented to the installation of crossing signals and equipment necessary to designate two (2) Quiet Zones, as that term is defined in Section 2 of this Amendment (and Section 2 the Agreement, as amended by this Amendment). Because the Quiet Zone crossing signals and equipment authorized by the Settlement will benefit the Project, Developer is willing to contract for and oversee installation of such Quiet Zone crossing signals and equipment, as more specifically set forth in this Amendment. G. The City and Developer wish to amend this Agreement in order to revise the amount of the Phase I Reimbursement payable by the City to Developer and to provide for certain revised duties and obligations of both the City and Developer with respect to the Project, including the City's agreeing to pay a portion of the matching funds required by the Grant Agreement and the City's agreeing to pay all attorney's fees associated with the City's eminent domain actions filed as part of the City's acquisition of the Railroad Property, both directly from funds previously appropriated for the Phase I Reimbursement. NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Developer agree as follows: AGREEMENT 1. The City Council hereby finds, and the City and Developer hereby agree, that the recitals set forth above are true and correct and form the basis upon which the City and Developer have entered into this Amendment. 2. Exhibit "E", attached hereto, is hereby made a part of this Amendment and the Agreement for all purposes. Section 2 of the Agreement is hereby amended to revise certain definitions and add new terms and definitions, as follows: City's Match means the City's contribution of$145,410.00, which is a portion of the $805,410.00 matching funds required by the Grant Agreement as a condition of the City's receiving all of the available Grant Funds, the remainder of which shall be covered by Developer's Match. Developer's Match means Developer's contribution to the City equal to $660,000.00, which, subject to Developer's cash payment of the processing fee established and assessed by TxDOT for its review and assessment of the Project, shall at Developer's option be in cash or by land Page 2 Amendment No.2 to Economic and Community Development Agreement between City of Fort Worth and S07#l,L.P. donation to the City or a combination thereof. Developer's Match is a portion of the $805,410.00 matching funds required by the Grant Agreement as a condition of the City's receiving all of the available Grant Funds, the remainder of which shall be covered by the City's Match. Initial Spine Road means those public street improvements for a portion of the road to be known, and generally referred to, as Museum Way, plus all related water, sewer, storm drain, and street light improvements; franchised utility improvements; and landscape and irrigation improvements, all as more specifically set forth in a CFA executed by and between the City and Developer. Quiet Zone means a railroad quiet zone, as that term is defined and used in Title 49, Part 222 of the Code of Federal Regulations. Quiet Zone Infrastructure means all crossing signals and equipment necessary and desirable, as determined by the City in its sole discretion, for Quiet Zones to be established at (i) the crossing of the Initial Spine Road (Museum Way) over the Fort Worth and Western Railroad tracks and right-of-way and (ii) the crossing of West Seventh Street over the Fort Worth and Western Railroad tracks and right-of-way, as more specifically provided in Section 4 and as shown in Exhibit "E" of this Agreement. 3. Exhibit "B" of the Agreement is hereby amended to add "Construction of a hotel" as a bullet point. The first sentence of the introductory paragraph of Section 4 of the Agreement(Phase I of the Project) is hereby amended to read as follows: 4. PHASE I OF THE PROJECT. Within the boundaries of the Property, Developer shall construct or cause construction of (i) the Initial Spine Road; (ii) twelve (12) townhomes; (iii) site infrastructure for an additional forty-seven (47) townhomes; (iv) a marketing center; (v) a detention pond; (vi) a sanitary sewer lift station; and (vii) a hotel operating under a national name brand, all as depicted and outlined in Exhibit`B" ("Phase I"). 4. Section 4.1 of the Agreement is hereby amended to read as follows: 4.1. Partial Reimbursement for Cost of Initial Spine Road and Quiet Zone Infrastructure. Developer will construct the Initial Spine Road and the Quiet Zone Infrastructure in accordance with a CFA executed by and between the City Page 3 Amendment No.2 to Economic and Community Development Agreement between City of Fort Worth and S07#l,L.P. vIQI�U tl N15IQI �(l5 IQI `/�.1(JU I Ye ^�•iI JY�� Yet and Developer. Upon acceptance by the City of the Initial Spine Road as a public right-of-way (as evidenced by a written statement signed by both the City and Developer's general contractor that the final punch list related to those projects has been completed) and upon acceptance by the City of the Quiet Zone Infrastructure (as evidenced by a written certificate of acceptance issued by the City), and provided that TxDOT has approved in writing the appraised value of the land comprising the Initial Spine Road and that such amount may be applied toward and deducted from Developer's Match, the City will reimburse Developer a portion of the cost of construction of the Initial Spine Road and the Quiet Zone Infrastructure equal to the lesser of(i) ten percent (10%) actual hard and soft costs incurred for or directly related to the construction of Phase I; (ii) $941,271.88 (the "Phase I Reimbursement"); or (iii) thirty percent (30%) of the total project cost covered by the CFA, as may be amended, as permitted by and in accordance with Chapter 212, Subchapter C, Texas Local Government Code. The City may pay the Phase I Reimbursement directly to Developer or, at Developer's request, to a contractor of Developer under the CFA. 5. The penultimate and the last sentences of Section 4.2 (Acquisition of Railroad Property) are hereby amended to read as follows: Notwithstanding anything to the contrary in the Property Acquisition Agreement, the City has paid (i) from then-currently available City revenues, all costs for the acquisition of the Railroad Property and any related costs and expenses, including, but not limited to professional fees (but excluding any attorney's fees) and (ii) attorney's fees related to the City's eminent domain actions related to the City's acquisition of the Railroad Property (Fort Worth & Western Railroad v. City of Fort Worth, 4:03CV0319Y (5th Circuit Court of Appeals 04-10433) and City of Fort Worth v. Fort Worth & Western Railroad, City of Fort Worth, Texas, Fort Worth Independent School District, and Tarrant County, Texas) in an amount equal to $50,000 in funds previously appropriated for that purpose plus another $158,195.12 in funds originally appropriated for the Phase I Reimbursement, as authorized by Mayor and Council Communication C- 20387. Developer shall not be required to pay any property acquisition costs or legal fees related to the City's acquisition of the Railroad Property. 6. Section 4.5 (Deductions from Phase I Reimbursement for Costs Related to Acquisition of Railroad Property), which was added pursuant to Amendment No. 1 to the Agreement (City Secretary Contract No. 30949), is hereby deleted in its entirety. Page 4 Amendment No.2 to Economic and Community Development Agreement between City of Fort Worth and S07#l,L.P. 7. Section 6.1 (City's Participation Limited to Available Grant Funds) is hereby amended to read as follows: The City anticipates that it will receive Grant Funds in the amount of$3,221,639.00. Regardless of the total amount of Grant Funds actually received, Developer understands and agrees that $2,588,639.00 from the aggregate Grant Funds received are reserved by the City and fall outside the scope of this Agreement (the "Reserved Granf Funds"). Developer understands and agrees that the anticipated uses of the Reserved Grant Funds are subject to change with TxDOT's approval, that Developer has no rights as of any kind or nature to the Reserved Grant Funds and that the City is not obligated to use the Reserved Grant Funds for Developer's benefit or for any benefit of the Project unless specifically required by the Funding Agreement. The difference between the total amount of Grant Funds received and the Reserved Grant Funds, up to $633,000 may be used by the City for streetscape improvements to and adjacent to the Initial Spine Road in accordance with Section 6.2 of this Agreement. 8. Section 6.3 of the Agreement (Partial Reimbursement for Cost of Extended Spine Road) and Section 6.4 of the Agreement (Excess Grant Funds) are hereby deleted in their entirety. Notwithstanding anything to the contrary in the Agreement, Developer understands and agrees that City participation in the Project is limited to (i) the partial reimbursement for the cost of the Initial Spine Road and the Quiet Zone Infrastructure, as outlined in and in accordance with Section 4.1, and (ii) the use of up to $633,000 in Grant Funds for streetscape improvements to and adjacent to the Initial Spine Road in accordance with Section 6.1 of this Agreement, as amended herein. It is further understood and agreed that Developer will not request and the City will not provide any additional Grant or City funds toward the Project other than as provided in subsections (i) and (ii) above. In the event of any conflict between a provision of the Agreement or this Section 8, this Section 8 shall control. 9. Section 20 of the Agreement (Priority of Documents) is hereby amended to read as follows: In the event that any term or condition of this Agreement directly conflicts with any term or condition of the Property Acquisition Agreement or any CFA, this Agreement shall control unless specifically stated otherwise in the Property Acquisition Agreement or CFA, as the case may be; provided, however, that in the event there is any direct conflict between a term or provision of the Property Acquisition Agreement or CFA and Section 4.1 of this Agreement, then Section 4.1 of this Agreement shall control in all cases. Pages w' 'JS�V�S= kSVUJ�q Amendment No.2 to Economic and Community Development Agreement between City of Fort Worth and S07#l,L.P. L a .�JU.UiNI �ILG'So 10. All capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Agreement. All terms and conditions of the Agreement that are not specifically amended by this Amendment shall remain in full force and effect. This Amendment contains the entire understanding and agreement between the City and Developer, and any lawful assign and successor of Developer, as to the matters contained herein. EXECUTED to take effect on December 23, 2004: CITY OF FORT WORTH: 514ee a p nership: B , eral partner By: By:A � Dal isseler Name: Acting Assistant City Manager Title: APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Assistant City Attorney M&C: C-209/8 8�23�OS Attested By: 101— Marty Hendrix City Secretary JI Page 6 Amendment No.2 to Economic and Community Deveiopment Agreement U �'�+�''�'y '�•' 1f between City of Fort Worth and S07#1,L.P. i Exhibit "E" Quiet Zone Infrastructure Item Improvements Estimated Cost 1 4-Quadrant Gate System at W 7t Street including Exit Gate $331,694.05 Management System (ELMS) and confirmation signal. 2 Wayside Horn System at W 7th Street. $72,935.92 3 Wayside Horn System at Museum Way including confirmation $105,370.03 signal. Total Estimated Cost: $510,000.00 Notes: 1. The above items include all necessary equipment, labor materials and testing to install quiet zone equipment in accordance with CFR Title 49, part 222. 2. All work shall meet the requirements of the "Settlement Agreement"between the City of Fort Worth and FWWR with the exception that the parts list has changed due to refinement of engineering work. (Attached are parts lists corresponding with the three items listed above.) 3. All work will be reviewed and approved by the City's consultant prior to acceptance by the City. 4. The EGMS detects the presence of a vehicle inside the gates (on the crossing) and automatically opens the exit gates allowing the vehicle to exit the crossing. 5. The confirmation signal is a signal for the locomotive engineer that confirms that the crossing signal system is functioning properly—thus allowing the locomotive engineer to omit blowing the horn. 6. The Wayside Horn System is a backup to the four-quadrant gate system. It must activate and the horn must sound under either of two conditions: A. The gates and flashers are not functioning properly. B. Traffic is detected on the crossing(between the gates). This must work even if no train is approaching the crossing and a vehicle is detected on the crossing for an extended time. The horn must continue to sound until no vehicle is detected on the crossing. This function can not be performed without the EGMS equipment. 7. Supporting documents attached: A. Parts List, W 7th Street 4-Quadrant Gate Upgrade. B. Parts List, W 7th Street Wayside Horn System. C. Parts List, Museum Way Wayside Horn System. D. W7 1h Street Site Layout E. Museum Way Site Layout 8. Costs outlined in this Exhibit are estimates only. Developer shall be responsible for all actual costs associated with the purchase, construction and installation of the Quiet Zone Infrastructure, even if such costs are greater than those estimated herein; provided, however, that, at the request of Developer, the City will pay a Page 7 1 Amendment No.2 to Economic and Community Development Agreement .�:;�.�, Ui 7 between City of Fort Worth and SO7#l,L.P. ."` i'•" '��9�� contractor undertaking work on the Quiet Zone Infrastructure and to reduce any such amounts from the Phase I Reimbursement payable by the City to Developer. Page 8 Amendment No.2 to Economic and Community Development Agreement between City of Fort Worth and S07#l,L.P. City of Fort Worth, Texas Mayor and Council Communication ,�C9 .2,' Y,„',du 'lf�/,:ty„YI RA'/,T/L�%It!'B` d ,..�9//%%/� ., ......,=„!///..,-.k•. 'i . i,,,,,,,;=.. .....,,;ri,.a,,.,7v:'kb'a+4��.�, ,✓y,,;9,,..C�Rx(.%,lae� "�r�'� /9, iH .i.”xP3"1Tll///eDj%�, 'q/lllJdl%///r�'O////I.YOJ:I'� COUNCIL ACTION: Approved on 8/23/2005 '. _'3`�dF .,:'/ Ig..� /'/.,. :.:: !!O%:Y:,' /..,,.:: /////..//..,.:'.kT�d'£"✓//////,/////„'i;;/////,/////.////.,r. '::..a...33 !i %/69i..YNL/ .,.....:'... ��”sl/G.i"J,Yh,Y///Ho,W.u»4rG;'1i699. .i/.'%/ „?u�'fsil..::,d'YilUl4s6U,.b..fu 11'l✓.au S.1:i DATE: Tuesday, August 23, 2005 LOG NAME: 17SO7 REFERENCE NO.: C-20918 SUBJECT: Authorize Execution of Amendments to the Economic and Community Development Agreement and the Enhanced Community Facilities Agreement with S07 No.1, L.P., Regarding South of Seventh Development Project syiu Wiz: .,,,:';✓.isni ss /ai/i„, ­01..0"e .A... c✓vii,.,,. .:,:.7/a�i/n arcy�^,s:yc�.,.wa,i �.....,a. ;,,,iiiiiiiic�w,.,,,;;, /i..,-zc: .,✓a .,rz:.F,.;;::/i zsnz RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an amendment to the Economic and Community Development Agreement and to the Enhanced Community Facilities Agreement with S07 No.1 regarding the South of Seventh development project. DISCUSSION: On January 28, 2003, (M&C C-19453 and M&C C-19454) City Council approved authorizing the City Manager to execute an Economic and Community Development Agreement (ECDA) (City Secretary Contract No. 31772) and an Enhanced Community Facility Agreement (ECFA)(City Secretary Contract No. 29230) for the development of the South of Seventh project (the Project). Pursuant to the ECDA, the City will reimburse Developer a portion of the cost of construction of a road through the development and related improvements equal to the lesser of ten-percent (10%) of Developer's actual hard and soft costs incurred for or directly related to the construction of Phase I of the Project, or $940,000 (the "Phase I Reimbursement"). A portion of these improvements includes a concrete at-grade crossing and related costs for the crossing of the Fort Worth and Western Railroad at Museum Way. Subsequently, on November 2, 2004 the City and Developer amended the ECDA to allow the City to decrease from the amount of the Phase I Reimbursement certain property acquisition expenses and attorneys' fees incurred in the course of the eminent domain actions related to securing the railroad crossing. In addition to the original ECDA, on January 28, 2003, (M&C C-19455) the City Council approved execution of a Transportation-Land Use Joint Venture Grant Agreement with the State of Texas Department of Transportation (TxDOT) qualifying the use of the Project and surrounding area for the Transportation-Land Use Joint Venture Program (Grant). Through this program the City anticipates receiving $3,221,639 through reimbursements of qualified public project expenditures in the Project and surrounding areas. On December 16, 2003, the City Council approved and appropriated the full amount of the grant from TxDOT. To date, the Developer has substantially completed the first phase of the Project, including construction of townhomes, additional lots and the spine road (Museum Way). City staff is recommending that ECDA and ECFA be amended to include the quiet zone improvements as a reimbursable cost in the ECFA. This amendment will allow the quiet zone improvements to be reimbursed through the previously approved Grant. The total cost of the quiet zone construction included city requested improvements above and beyond construction of a standard quiet zone and because the quiet zone on West 7th Street provides off- development improvements that benefit the whole area through improved safe mobility, use of the grant funds are appropriate as a funding source. Consequently, $304,876 of the previously appropriated grant funds will be used as partial funding of the total $510,000 cost of the quiet zone construction. The remainder of the cost will be deducted from the developer's Phase I reimbursement funds for this project, Logname: 17507 Page 1 of 2 with the full amount reimbursed from TxDOT to the City through the grant. Additionally, City staff is recommending that the ECDA be amended to allow the City to pay $145,410, which would otherwise be reimbursed to the Developer, to the State as a portion of the local match to enable full grant funding. These funds were previously appropriated by the City Council as part of the Phase I Reimbursement. The developer's initial contribution to the local match was $660,000, which will now be increased to a total local match of$805,000. The South of Seventh development project is located in COUNCIL DISTRICT 9. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the Critical Projects Fund and in the current operating budget, as appropriated of the Grants Fund. TO Fund/Account/Centers FROM Fund/Account/Centers GR76 541600 017302898 $304,876.00 C116 541600 020116136360 $205,124.00 C116 541110.020116136360 $145,410.00 Submitted for City Manager's Office by: Dale Fisseler (6140) Originating Department Head: Tom Higgins (6192) Additional Information Contact: Jay Chapa (5804) Logname: 17SO7 Page 2 of 2 M&C Request Review Page 1 of 2 YY �/i/ ifY� ■ C F t.o r Ft1Et7WOR EE Herne I Council Agenda I M&C I Employee Directory I Morning Report I Ads I PRS I IT Online I Departments I Site Map Print M&C COUNCIL ACTION: Approved on 8/23/2005 DATE: 8/23/2005 REFERENCE NO.: C-20918 LOG NAME: 17SO7 CODE: C TYPE: NON-CONSENT PUBLIC HEARING: NO SUBJECT: Authorize Execution of Amendments to the Economic and Community Development Agreement and the Enhanced Community Facilities Agreement with SO7 No.1, L.P., Regarding South of Seventh Development Project RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an amendment to the Economic and Community Development Agreement and to the Enhanced Community Facilities Agreement with SO7 No.1 regarding the South of Seventh development project. DISCUSSION: On January 28, 2003, (M&C C-19453 and M&C C-19454) City Council approved authorizing the City Manager to execute an Economic and Community Development Agreement(ECDA) (City Secretary Contract No. 31772) and an Enhanced Community Facility Agreement (ECFA)(City Secretary Contract No. 29230)for the development of the South of Seventh project (the Project). Pursuant to the ECDA, the City will reimburse Developer a portion of the cost of construction of a.road through the development and related improvements equal to the lesser of ten-percent(10%) of Developer's actual hard and soft costs incurred for or directly related to the construction of Phase I of the Project, or$940,000 (the "Phase I Reimbursement"). A portion of these improvements includes a concrete at-grade crossing and related costs for the crossing of the Fort Worth and Western Railroad at Museum Way. Subsequently, on November 2, 2004 the City and Developer amended the ECDA to allow the City to decrease from the amount of the Phase I Reimbursement certain property acquisition expenses and attomeys' fees incurred in the course of the eminent domain actions related to securing the railroad crossing. In addition to the original ECDA, on January 28, 2003, (M&C C-19455)the City Council approved execution of a Transportation-Land Use Joint Venture Grant Agreement with the State of Texas Department of Transportation (TxDOT) qualifying the use of the Project and surrounding area for the Transportation-Land Use Joint Venture Program (Grant). Through this program the City anticipates receiving $3,221,639 through reimbursements of qualified public project expenditures in the Project and surrounding areas. On December 16, 2003,the City Council approved and appropriated the full amount of the grant from TxDOT. To date, the Developer has substantially completed the first phase of the Project, including construction of townhomes, additional lots and the spine road (Museum Way). City staff is recommending that ECDA and ECFA be amended to include the quiet zone improvements as a reimbursable cost in the ECFA. This amendment will allow the quiet zone improvements to be reimbursed through the previously approved Grant. The total cost of the quiet zone construction included city requested improvements above and beyond construction of a standard quiet zone and because the quiet zone on West 7th Street provides off- development improvements that benefit the whole area through improved safe mobility, use of the grant funds are appropriate as a funding source. Consequently, $304,876 of the previously appropriated grant funds will be used as partial funding of the total $510,000 cost of the quiet zone construction. The remainder http://www.cfwnet.org/council packet/mc review.asp?refnum=C-20918 8/26/2005 M&C Request Review Page 2 of 2 of the cost will be deducted from the developer's Phase I reimbursement funds for this project, with the full amount reimbursed from TxDOT to the City through the grant. Additionally, City staff is recommending that the ECDA be amended to allow the City to pay $145,410, which would otherwise be reimbursed to the Developer, to the State as a portion of the local match to enable full grant funding. These funds were previously appropriated by the City Council as part of the Phase I Reimbursement. The developer's initial contribution to the local match was $660,000, which will now be increased to a total local match of$805,000. The South of Seventh development project is located in COUNCIL DISTRICT 9. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the Critical Projects Fund and in the current operating budget, as appropriated of the Grants Fund. TO Fund/Account/Centers FROM Fund/Account/Centers GR76 541600 017302898 $304,876.00 C116 541600 020116136360 $205.124.00 C116 541110 020116136360 $145.410.00 Submitted for City Manager's Office by Dale Fisseler(6140) Originating Department Head: Tom Higgins (6192) Additional Information Contact: Jay Chapa (5804) ATTACHMENTS http://www.cfwnet.org/council packet/mc review.asp?refnum=C-20918 8/26/2005