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Contract 51077
CITY SECRETARY CONTRACT NO. _5i tj r] SETTLEMENT AND RELEASE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND D.R. HORTON-TEXAS, LTD. This Settlement Agreement and Release ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("Fort Worth" or "City"), a home rule municipal corporation located in the state of Texas and situated in portions of Tarrant, Wise, Parker, Johnson and Denton Counties, acting by and through its duly authorized Assistant City Manager, and the D.R. Horton-Texas, Ltd. ("DR Horton"), a Texas Corporation, the state of Texas, acting by and through its duly authorized agent. RECITALS WHEREAS, DR Horton is developing the Trinity Oaks subdivision located near the 8100 block of Randol Mill Road in east Fort Worth; and WHEREAS, on July 14, 2016, DR Horton applied for a Phase 1 urban forestry permit to preserve 25.04%of existing tree canopy and to remove the remainder; DR Horton also applied for a Phase 2 urban forestry permit for the required tree planting plan; and WHEREAS, on March 10, 2017, it was confirmed by city staff that contractors working for DR Horton had over-cleared approximately 60,852 square feet of tree canopy along the northern portion of the development in violation of the approved Phase 1 urban forestry permit and the City's Urban Forestry Ordinance, Section 6.302 of the Zoning Ordinance; and WHEREAS, in October 2017, DR Horton notified staff of a request to remove additional tree canopy from the southern portion of the development to correct drainage issues; when conducting a site visit, city staff noted that additional clearing was done for installation of roadways and retaining walls which was not included in the approved urban forestry permit; and WHEREAS, to forever settle claims regarding the tree removal penalties due the City for violations of the urban forestry tree permit and Urban Forestry Ordinance and address the request for additional clearing, DR Horton and the City propose and agree to the replacement of lost canopy plus the planting of trees at a ratio of 5:1 (approximately 365,112 square feet) on the subject property and on medians located within public right-of-way; and maintain and guarantee the survival of the trees for two years in lieu of the penalties; and WHEREAS, the City and DR Horton now desire to conclude, settle, release and discharge once and forever, all rights, claims, causes of actions, liabilities, disputes and demands related to the City's claims for penalties due the City from DR Horton's over clearing on the Trinity Oaks Subdivision, and therefore are desirous of a final negotiated settlement and compromise of their dispute, as more fully set forth herein. NOW THEREFORE, in consideration of the mutual promises described herein, including the Recitals set forth above, which are incorporated herein by reference, the City and DR Horton agree as follows: AGREEMENT OFFICIAL RECORD i�Ol FORT WORTH AND DR NORTON SETTLEMENT AGREEMENT i ao.o o E�is�.a 1�tee, CITY SECRETARY FT.WORM TX A. TERMS. 1. The City and DR Horton have agreed that DR Horton shall plant and maintain approximately 365,112 square feet of replacement canopy and maintain and guarantee the survival of the replacement canopy trees for two years in full settlement of past claims regarding violations of the City's Urban Forestry Ordinance on the Trinity Oaks subdivision development. The trees shall be planted and maintained, as outlined in Exhibit "A", attached and incorporated into this Agreement for all purposes, for plantings on private property, and as outlined in Exhibit "C", attached and incorporated into this Agreement for all purposes, for plantings located within medians located in the public right-of-way. 2. Not later than November 30, 2018, DR Horton shall complete the planting of the replacement tree canopy as shown and described on Exhibit "A" and Exhibit "C", in compliance with Exhibit B hereby made a part of this Agreement for all purposes. If DR Horton fails to meet the November 30, 2018 deadline to complete such plantings, the City has the right to place a hold on all future building permits for the Trinity Oaks subdivision development until DR Horton complies with the requirements of this Section 2; however, building permits issued on or before November 30, 2018 shall not be affected. 3. The City agrees to immediately release any and all holds on building permits for the Trinity Oaks subdivision development to the extent such holds are related to the dispute that is the subject of this Agreement. B. RELEASE OF CLAIMS. For and in consideration of the terms and conditions set forth herein, the City hereby RELEASES AND DISCHARGES DR Horton from any and all claims, demands or causes of action at common law, statutory, or otherwise, which the City has, known or unknown, existing at the time of execution of this Agreement related to the violations of the urban forestry permit and any and all provisions of the City's Urban Forestry Ordinance. This release shall be a fully binding and complete settlement between the Parties. Notwithstanding any provision of this Settlement Agreement, the City and DR Horton acknowledge and agree that any future violations of the Urban Forestry Ordinance on the site following the date of the parties' execution of this Agreement may be enforced by the City. C. VOLUNTARY AGREEMENT. This Settlement Agreement is freely and voluntarily given by each party, without any duress or coercion, and after each party has consulted with its counsel. Each party has carefully and completely read all of the terms and provisions of this Settlement Agreement. It is understood and agreed by the City and DR Horton that nothing herein shall be deemed to be an admission of liability by DR Horton with respect to the matter of this Settlement Agreement. D. AUTHORITY. The City and DR Horton represent and warrant to the other that each has the legal right, power and authority to enter into this Settlement Agreement and to perform its obligations hereunder. E. ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST. This Settlement Agreement contains the entire agreement between the City and DR Horton regarding the FORT WORTH AND DR HORTON SETTLEMENT AGREEMENT PAGE 2 1340.020\72182.4 matters set forth herein, and all prior or contemporaneous agreements, understandings, representations, warranties and statements, oral or written, are merged herein. This Agreement shall be binding upon and inure to the benefit of the administrators, personal representatives, heirs, successors, and assigns of each. F. GOVERNING LAW. This Agreement is entered into in the State of Texas and shall be construed and interpreted in accordance with its laws and adjudicated in a state or federal court of competent jurisdiction located in the State of Texas. EXECUTED in duplicate originals on the date hereinafter indicated. D.R. HORTON-TEXAS, LTD., THE CITY OF FORT WORTH a Texas Limited Partnership By: D.R.Horton,Inc., a Delaware Corporation, Its Aytkgi-ized Agent 11 Benjamin Clair Jesus "Jay" Chapa Assistant V' e Pre ident Assistant City Manager Date: Date: APPROVED AS TO FORM AND LEGALITY: Melinda Ramos Sr. Assistant City Attorney Aged by: ; FO ary J. Ka r, G Lary " OFFICIAL RECORD U CITY SECRETARY FT.WORTH,TX * _ FORT WORTH AND DR HORTON SETTLEMENT AGREEMENT PAGE 3 1340.020\72182.4 EXHIBIT A Planting Plan for Private Property FORT WORTH AND DR HORTON SETTLEMENT AGREEMENT PAGE 4 1340.020\72182.4 V I!9lqx3 J sax2j.'/4unoD]Usual.`IIuoM yodJo AI!D sxeoflmll c of �l :]1 J8 v 1!9!tiv3 ouo usd--I j knsaml umpfl O PG NV'Id.C2IIM03NVgHf1 �"' �L.�..�.-"• x " H • � + •3110 &V AMA13U3Y.- M ? s ggm p LU Z -A r• � � � LU a. .�g��� U�-- g2 3 u! 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I sexat',(lnno�1—.L gyoM Maio A1!3 I SVO 141Uuy� = - i!1 d V t!Q!4yg-vv,d 8v!i-m om.L uvd-ma kn—oa vvgin G O y_ 1N_i 3 AId Id�d�'�SQAIdI 1, !L .. ,....�. a x F ,3110 A9 LYDIDA3l I3G33.YYY g g a --- ------�`� avow ummaffarN alrtx O O � 2 A 9 ^ It 4t TIM l 1 11 Ir I # , , o= yyl a a OOoil 0o0 1k= �l OI C� —O O QJ I I 0aaai�� iaa iai aaaa a �� I -- — - - -- - - - I 1 I _ f 28 fill 1 I I S 3E S = v nj in 3 [ lull, fif RaNgs it :o ei 0 9 j Ise a Y e �s I O to O-'O O O to 4 O O a 0 0 0 OI s 4 1 J J i rOI fi� �OR r 191 s 0 10 0 �Q 0 0 Co= ~I O O (3-01 O O 1 lob t� ± l_ o i C — a TD w i .1 L J F V l!q!qx3 A , serol'(luno 1—.L IoM vod3o A!J 00 71�� S' • a;ld SxeO ClmuZ c of ye �i51 3 • Il;� Nv-1d 9CIVDSQNd-1 oz•rc�ww y.�rw.ar•o a,.. i o x y F ,31ro .1a L�pLu31I)43•.VY'Ad • _ i D lO O l _� Fi' Q, --Q n I I 'oil ' L jL/J•y�fro � I •�9 ei � I � � r 3 f- y, •9 e t ry ' 0WZi -- I ➢ --- -- a w i I < kil' :r o 4 4 V V i i 3xv, XYY 1, y v 9. 0 q F 0 o � I 1 / I! f MW 3S 61 •O i i •� b eox awe/c✓�n•o wu a wuae ae ar:i a¢/W� ••u rss�w•a i•n••o�•rs'iymoM.aa�nro�awaymoa\o•yw\�r\..ewi>dc•ten\•\+••t'wn•�s\\*w•n J EXHIBIT B TRINITY OAKS PROPERTY SECTION 1. DUTIES AND RESPONSIBILITIES 1.1 DR Horton shall commence and provide such services in accordance with this Agreement and its attachments and all applicable laws. In providing such services, DR Horton shall take such steps, as are appropriate to ensure that the work involved is properly coordinated with any related work performed by the City. 1.2 Any work by DR Horton prior to approval by the City may be ordered stopped at the discretion of the City and subject to removal and replacement by the DR Horton. 1.3 DR Horton represents that it has or will secure, at its own expense, all materials, supplies, machinery, equipment, tools, superintendence, labor, personnel, insurance, and other accessories and services necessary to provide the following improvements to the Trinity Oaks property sites("Area"): a. Install and maintain for a two year period as further described herein all planting material in the Area in accordance with the plans on Exhibit"A"of this Agreement. b. As required, DR Horton shall adhere to the Parks and Recreation Department's "Water Conservation/Rationing Procedures". c. DR Horton will provide, at its own expense, all materials, equipment, and labor necessary to provide water to said trees. d. In the event any City owned property such as utilities, equipment, turf, etc. are damaged or destroyed during watering or maintenance of the planting due to the negligence or acts of omission of DR Horton, DR Horton will be responsible for the cost of repair or replacement. e. Collect and properly dispose of all trash, garbage, litter, and debris related to the DR Horton scope of services under this Agreement. SECTION 2. ALTERATIONS AND ADDITIONS 2.1 DR Horton shall not make or cause to be made any alterations, additions, or improvements to the canopy proposed for Trinity Oaks property depicted in Exhibit A without the prior written consent of the Director, Planning and Development Department. DR Horton shall present to the Director the plans and specifications for such alterations, additions, and improvements at the time such approval is sought. 2.2 Tree canopy to be provided on individuals lots, shall be planted as those lots are developed, and notwithstanding anything to the contrary in this Agreement, the lot owner shall be responsible for maintaining all trees required by this Agreement to be planted and maintained within the platted lot. FORT WORTH AND DR HORTON SETTLEMENT AGREEMENT PAGE 5 1340.020\72182.4 EXHIBIT C ADOPT-A-MEDIAN AGREEMENT FOR TREE PLANTING AND TREE MAINTENANCE SERVICES FORT WORTH AND DR HORTON SETTLEMENT AGREEMENT PAGE 6 1340.020\72182.4 EXHIBIT "C" CONTRACT NO.-.2--Z7 ADOPT-A-MEDIAN AGREEMENT FOR TREE PLANTING AND TREE MAINTENANCE SERVICES THIS ADOPT-A-MEDIAN AGREEMENT (Agreement) is made by and between the CITY OF FORT WORTH, a home rule municipal corporation situated in the State of Texas (hereinafter referred to as "City") acting by and through the Director of the Park & Recreation Department (hereinafter referred to as "Director") and D.R. Horton-Texas, Ltd., a Texas limited partnership (hereinafter referred to as the "DR Horton"), acting by and through its duly authorized representative. RECITALS WHEREAS, DR Horton is developing the Trinity Oaks subdivision located near the 8100 block of Randol Mill Road in east Fort Worth and over-clearing occurred on the property in violation of the Zoning Urban Forestry Ordinance;and WHEREAS,' to forever settle claims regarding the tree removal penalties due the City for violations of the urban forestry tree permit and Urban Forestry Ordinance and address a request for additional clearing, DR Horton and the City agree to the replacement of lost tree canopy plus the planting of trees at a ratio of 5:1 (approximately 365,112 square feet) on the Trinity Oaks Subdivision and on public rights-of-way or on public property such as parks; and DR Horton agrees to maintain and guarantee the survival of the trees for two years in lieu of the penalties; and WHEREAS, the City and DR Horton executed the Settlement and Release Agreement, CSC No. 510-1 to conclude, settle, release and discharge once and forever, all rights, claims, causes of actions, liabilities, disputes and demands related to the City's claims for penalties due the City from DR Horton's over-clearing on the Trinity Oaks Subdivision; and WHEREAS,the execution of an Adopt-a-Median agreement will effectuate the planting and maintenance of trees in the public right-of-way. NOW THEREFORE, in consideration of the Settlement and Release Agreement, including the Recitals set forth above, which are incorporated herein by reference, the City and DR Horton agree as follows: SECTION 1 DESCRIPTION OF PROPERTY 1.01 The City hereby engages DR Horton, and DR Horton hereby agrees to provide, furnish, and perform tree planting and maintenance as set forth in Section 2 of this Agreement on City- owned medians and right-of-ways ("Median") located along Randol Mill Road as further identified in"Exhibit A,"attached and incorporated herein for all purposes("Area"). SECTION 2 DUTIES AND RESPONSIBILITIES D.R.Horton-Texas,Ltd.Adopt A-Median Agreement Page 1 of 20 1340.020\73208.3 2.01 DR Horton shall commence and provide such services in accordance with this Agreement and its attachments and all applicable laws. In providing such services, the DR Horton shall take such steps as are appropriate to ensure that the work involved is properly coordinated with any related work performed by the City. 2.02 On June 21, 2018, the City issued a letter approving plans for all work and planting materials under this Agreement, and all work by DR Horton shall be in compliance with such plans. 2.03 DR Horton represents that it has or will secure, at its own expense, all materials, supplies, machinery, equipment, tools, superintendence, labor, personnel, insurance (if required), and other accessories and services necessary to provide the Services in accordance with the requirements of the City. The following shall constitute the services to be provided by the DR Horton and shall be referred to as the"Services": a. As required, DR Horton shall adhere to the Park & Recreation Department's "Water Conservation/Rationing Procedures" as required by Exhibit B, which is attached hereto and incorporated herein for all purposes. b. Water and maintain newly planted trees as required by Exhibit C, "Tree Watering Policy," which is attached hereto and incorporated herein for all purposes. DR Horton is not required to install an automated irrigation system, but is required to water and maintain the newly planted trees for a period of two years. c. DR Horton shall not be required to mow the Area. 2.04 The City will perform the following: a. Make inspections to determine compliance with this Agreement. In the event the City observes non-compliance, DR Horton will be notified and shall be given a period, not to exceed 30 days, from the date of notification by the City, of time to correct the problem. 2.05 In the event that any City-owned property, such as utilities, median improvements, equipment, turf, etc., and the like are damaged or destroyed by the DR Horton during the performance of the Services hereunder, including, but not limited to, installation, watering, or maintenance of any landscape improvements, DR Horton shall be solely responsible for all repairs or replacements except to the extent that such damage is caused solely by the acts of the City. The City shall determine whether any damage has been done, the amount of the damage, the reasonable costs of repairing the damage, and whether DR Horton is responsible. The City shall be the sole judge of the damage to the premises, in which judgment shall be exercised reasonably. Any damage by DR Horton shall be repaired or replaced by DR Horton to the reasonable satisfaction of the City within thirty (30) calendar days of receipt of written notification from the City. SECTION 3 TERM OF AGREEMENT 3.01 This agreement is for a term of two years beginning on the date of execution of the Settlement and Release Agreement between the City of Fort Worth and DR Horton, LTD, CSC No. D.R.Horton-Texas,Ltd.Adopt-A-Median Agreement Page 2 of 20 1340.020\73208.3 SECTION 4 ALTERATIONS AND ADDITIONS 4.01 DR Horton shall not make or cause to be made any alterations, additions, or improvements to City property without the prior written consent of the Director. DR Horton shall present to the Director any plans and specifications for such alterations, additions, and improvements at the time such approval is sought. The Director reserves the right to either approve or disapprove of such plans, either in whole or in part, as may be necessary in its sole and absolute discretion. 4.02 All alterations, additions, and improvements to City property made with the written consent of the Director shall, upon completion and acceptance by the Director, become the property of the City. DR Horton may be required to remove, at its expense, any alterations, additions, or improvements not meeting specifications as approved by the Director. SECTION 5 RIGHT OF ACCESS 5.01 The City does not relinquish the right to control the management of the Area, or the right to enforce all necessary and proper rules for the management and operation of the same. The City through its City Manager, Director, Police and Fire personnel, and other designated representatives, has the right at any time to enter any portion of the Area (without causing or constituting a termination of the use or an interference of the use of the Area by DR Horton) for the purpose of inspecting and maintaining the same and doing any and all activities necessary for the proper conduct and operation of public property; provided this shall not authorize or empower City to direct the activities of DR Horton or assume liability for DR Horton's activities. 5.02 The City reserves the right to modify or remove any improvements made by DR Horton at the Area as determined necessary by the Director should any of the following occur: a. DR Horton ceases to maintain the Area according to this Agreement. b. The Area becomes a hazard to the general public. c. The City determines, in its sole discretion, that another beneficial use for the Area exists, to include, but not limited to, street relocation, street realignment, and the installation of any public utilities or improvements. d. The City determines in its sole discretion, to make use of the Area for the installation of any public utilities or improvements. However, in the event the City modifies or removes any improvements made by DR Horton at the Area, DR Horton shall not be required to make any additional plantings or improvements, and the planting requirements of the Settlement and Release Agreement between the City of Fort Worth and DR Horton, LTD, CSC No. shall be deemed to be satisfied. SECTION 6 INDEMNIFICATION 6.01 DR HORTON AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND D.R.Horton-Texas,Ltd.Adopt-1-Median agreement Page 3 of 20 1340.020\73208.3 EXPENSES OFANYKIND,INCLUDING,BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS(INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) DR NORTON'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii)ANY ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF DR HORTON, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO INSTALLATION AND MAINTENANCE OF IMPROVEMENTS IN OR TO THE MEDIANS, RIGHTS-OF-WAYS, PARKS, AND CREEKS LOCATED WITHIN THE AREA, 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 OR WRONGFUL, WILLFUL ACTS OF THE CITY OR ITS OFFICERS,AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR WRONGFUL, WILLFUL ACTS OF BOTH DR HORTON AND CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 6.02 DR Horton covenants and agrees that the City shall in no way nor under any circumstances be responsible for any property belonging to the DR Horton, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers, which may be stolen, destroyed, or in any way damaged, AND DR HORTON HEREBY INDEMNIFIES AND HOLDS HARMLESS THE CITY FROM AND AGAINST ANY AND ALL SUCH CLAIMS. The City does not guarantee police protection and will not be liable for any loss or damage sustained by DR Horton, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers on any of the premises. 6.03 DR Horton agrees to forever release and waive all claims against the City, its departments, officers, agents, employees, and representatives for any and all claims, lawsuits, damages, and liabilities, including, but not limited to, personal injury (including death) and property damage or loss, from any act or omission of DR Horton, its employees, officers, agents, representatives, and volunteers in connection with this Agreement. DR Horton shall ensure that each and every community participant or volunteer that assists the DR Horton in the fulfillment of this Agreement executes the City's release, waiver, and indemnification agreement before providing or performing any services at the Area, a copy of which is attached hereto as Exhibit E. DR Horton shall retain a copy of said agreement during the term of this Agreement and for three years thereafter and shall provide the City with all originals upon request. DR Horton acknowledges and understands that the waiver, release, and indemnification agreement attached as Exhibit E is only effective for one year from the date of signature of each individual community participants; therefore, DR Horton shall ensure that each community participant is current prior to allowing that person to provide or perform any services at the Area. 6.04 It is further agreed that the acceptance of this release shall not constitute a waiver by the City of Fort Worth of any defense of governmental immunity, where applicable, or any other defense recognized by the Statutes and Court decisions of this State. SECTION 7 INSURANCE D.R.Horton-Texas,Ltd.Adopt-3-Median.agreement Page 4 of 20 1340.020\73208.3 7.01 The City will not require insurance under this Agreement for litter abatement and/or debris removal unless the fulfillment of any obligations hereunder requires the use of a contractor, motorized equipment, battery operated, power equipment, riding equipment, and the like. If the fulfillment of any obligations requires the use of a contractor, then the contractor must have, at a minimum, insurance coverage as detailed below. Likewise, if the DR Horton desires to use riding, motorized, battery operated, or power equipment to fulfill any obligation under this Agreement, then the DR Horton must have, at a minimum, insurance coverage as detailed below. Prior to commencing any work, the DR Horton and/or its contractor (as applicable) shall deliver to City, certificates documenting this coverage. The City may elect to have the DR Horton or its contractor submit its entire policy for inspection. All insurance must be maintained through the term that such activities take place in the Area. a. Insurance coverage and limits: i. Commercial General Liability Insurance $1,000,000 each occurrence ii. $2,000,000 aggregate b. Automobile Liability Insurance: i. Coverage on vehicles involved in the work performed under this contract: $1,000,000 per accident on a combined single limit basis or: $500,000 bodily injury each person; $1,000,000 bodily injury each accident; and $250,000 property damage. ii. The named insured and employees of DR Horton or its contractor shall be covered under this policy. The City of Fort Worth shall be named an Additional Insured, as its interests may appear. Liability for damage occurring while loading, unloading and transporting materials collected under the Agreement shall be included under this policy. c. Worker's Compensation: i. Coverage A: statutory limits ii. Coverage B: $100,000 each accident iii. $500,000 disease -policy limit iv. $100,000 disease -each employee d. Miscellaneous i. Applicable policies shall be endorsed to name the City an Additional Insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers as respects the services. ii. Certificate(s) of Insurance shall document that insurance coverage specified herein are provided under applicable policies documented thereon. iii. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements. iv. A minimum of thirty (30) days' notice of cancellation or material change in coverage shall be provided to the City. A ten (10) days' notice shall be acceptable D.R.Horton-Texas,Ltd.Adopt-A-:Median Agreement Page 5 of 20 1340.020\73208.3 in the event of non-payment of premium. Such terms shall be endorsed onto DR Horton's or its contractor's insurance policies. Notice shall be sent to Department of Financial Management Services - Risk Management Division, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102. v. Insurers for all policies must be authorized to do business in the state of Texas or be otherwise approved by the City; and, such insurers shall be acceptable to the City in terms of their financial strength and solvency. vi. Deductible limits, or self-insured retentions, affecting insurance required herein shall be acceptable to the City in its sole discretion; and, in lieu of traditional insurance, any alternative coverage maintained through insurance pools or risk retention groups also must be approved. Dedicated financial resources or Letters of Credit may also be acceptable to the City. vii.Applicable policies shall each be endorsed with a waiver of subrogation in favor of the City as respects the Agreement. viii. The City shall be entitled, upon its request and without incurring expense, to review the DR Horton's or its contractor's insurance policies including endorsements thereto and, at the City's discretion the DR Horton or its contractor may be required to provide proof of insurance premium payments. ix. The Commercial General Liability insurance policy shall have no exclusions by endorsements unless the City approves such exclusions. x. The City shall not be responsible for the direct payment of any insurance premiums required by the contract. It is understood that insurance cost is an allowable component of contractor's overhead. xi. All insurance required above shall be written on an occurrence basis in order to be approved by the City. xii.DR Hortons that do not have employees or automobiles will not be required to obtain Auto Liability or Worker's Compensation insurance. SECTION 8 CHARITABLE ORGANIZATION 8.01 DR Horton agrees that if it is a charitable organization, corporation, entity or individual enterprise having, claiming or entitled to any immunity, exemption (statutory or otherwise) or limitation from and against liability for damage or injury to property or persons under the provisions of the Charitable Immunity and Liability Act of 1987, C.P.R.C., § 84.001 et seq., or other applicable law, that DR Horton hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. If applicable, DR Horton annually shall submit proof of 501(c)(3)eligibility to the City. SECTION 9 INDEPENDENT CONTRACTOR 9.01 DR Horton shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of the City. DR Horton 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 and subconsultants (or subcontractors). Nothing herein shall be construed as creating a partnership or joint venture between the City and DR Horton, its officers, D.R. Horton-Texas,Ltd.Adopt-A-:Median Agreement Page 6 of 20 1340.020\73208.3 agents, employees and subconsultants (or subcontractors), and doctrine of respondent superior has no application as between the City and DR Horton. SECTION 10 LICENSES AND PERMITS 10.1 DR Horton shall comply with all federal, state, and local laws, rules, and regulations, as well as with all regulations, restrictions, and requirements of the Police, Fire, and Code Compliance Departments now or hereafter in effect which are applicable to its operations. DR Horton shall obtain and keep in effect at its own cost and expense all licenses and permits, and pay all taxes incurred or required in connection with this Agreement and its operations hereunder. SECTION 11 LIENS 11.01 DR Horton agrees not to take any action that would result in the creation of any lien on City property. In the event that a lien is filed, as a result of any action of DR Horton, DR Horton will take all necessary steps to bond around or remove the lien within 10 days of its filing. SECTION 12 TERMINATION AND DEFAULT 12.01 DR Horton shall be in default under this Agreement if DR Horton breaches any term or condition of this Agreement and such breach remains uncured after 30 calendar days following receipt of written notice from the City referencing this Agreement (or, if DR Horton has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than 30 calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith) and identifying with specificity the alleged default. After notice and opportunity to cure as provided in this Agreement, the City shall have the right, and without further notice, to declare this Agreement immediately terminated and to enter into and take full possession of the Area save and except such personal property and equipment as may be owned by DR Horton. In the event of such cancellation or termination of this Agreement by the City, all rights and privileges of DR Horton hereunder shall cease and terminate and DR Horton shall immediately vacate the Area and remove any and all personal property belonging to the DR Horton. SECTION 13 NON-DISCRIMINATION/DISABILITIES 13.01 DR Horton, in its construction, maintenance, occupancy, or use of said Area shall not discriminate against any person or persons because of race, age, gender, religion, color, national origin, sexual orientation or disability. SECTION 14 NOTICES D.R.Horton-Texas,Ltd.Adopt-A-:Median Agreement Page 7 of 20 1340.020\73208.3 14.01 Any notice required shall be sufficient if deposited in the U.S. Mail, postage prepaid, - certified mail, return receipt requested, and addressed to the other party as follows: CITY: City of Fort Worth Park&Recreation Department Director 4200 South Freeway, Suite 2200 Fort Worth, TX 76115 With copy to: City of Fort Worth City Attorney 200 Texas Street Fort Worth, TX 76102 DR HORTON: Justin Bosworth, PE Area Land Development Manager - South Land I DFW West Division 6751 North Freeway, Fort Worth, TX 76131 JBosworth@drhorton.com Ben Clark Vice President of Land Development Land I DFW West Division 6751 North Freeway, Fort Worth, TX 76131 bmclark@drhorton.com With copy to: Shupe Ventura, PLLC Attn: Melissa Lindelow 9406 Biscayne Boulevard Dallas, Texas 75218 melissa.lindelow@svlandlaw.com 14.02 Mailing of all notices pursuant to this Section shall be deemed sufficient if mailed postage prepaid, certified mail, return receipt requested, and addressed as specified above, unless either party has been notified in writing of any changes to such address(es) or addressee(s). A copy of each notice from the City shall also be emailed to DR Horton at the email addresses provided above. All time periods related to any notice requirements specified in this Agreement shall commence on the date notice is mailed. SECTION 15 VENUE AND JURISDICTION 15.01 This Agreement shall be governed by the laws of the State of Texas. Venue for any action brought to interpret or enforce, or arising out of or incident to, the terms of this Agreement D.R.Horton-Texas,Ltd.Adopt-A-Median Agreement Page 8 of 20 1340.020\73208.3 shall be in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. SECTION 16 SUBLETTING,ASSIGNING, MORTGAGING 16.01 DR Horton agrees that it will not subcontract or assign all or any part of its rights, privileges or duties hereunder without the prior written consent of the Director, and any attempted subcontract or assignment of same without such prior consent of the Director, shall be void. Consent shall not be unreasonably withheld. 16.02 Subject to the limitations contained herein, the covenants, conditions, and agreements made and entered into by the parties hereunder are declared to be for the benefit of and binding on their respective successors, representatives, and permitted assigns, if any. SECTION 17 WAIVER, SECTION HEADINGS,AND SEVERABILITY 17.01 It is agreed that in the event any covenant, condition, or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall in no way affect any other covenant, condition, or provision herein contained, provided however, that the invalidity of any such covenant, condition, or provision does not materially prejudice either DR Horton or the City in connection with the rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement. 17.02. The waiver by the City of any default or breach of a term, covenant, or condition of this Agreement shall not be deemed to be a waiver of any other breach of that term, covenant or condition or any other term, covenant, or condition of this Agreement, regardless of when the breach occurred. 17.03 The headings in this Agreement are inserted for reference only, and shall not define or limit the provisions hereof. SECTION 18 FORCE MAJEURE 18.01 If either Party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal, state, county, or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the Party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. If a Force Majeure Event occurs, the City may, in its sole discretion, close or postpone the opening D.R.Horton-Texas,Ltd.Adopt-A-:Median Agreement Page 9 of 20 1340.020\73208.3 of its community centers, parks, or other City-owned and operated properties and facilities in the interest of public safety and operate them as the City sees fit. DR Horton herby waives any and all claims it may have against the City for damages resulting from any such Force Majeure Event. SECTION 19 ENTIRE UNDERSTANDING 19.01 This Agreement, including all exhibits attached hereto, together with the Settlement and Release Agreement between the City of Fort Worth and DR Horton, LTD, CSC No. constitutes the final, entire, and complete agreement between DR Horton and the City and supersedes any prior and contemporaneous negotiations, understandings, representations, and/or agreements between the parties. Any prior or contemporaneous oral or written agreement that purports to vary from the terms hereof shall be void. This Agreement cannot be modified or amended without the written consent of all the parties hereto and attached and made a part of this Agreement. 19.02 Neither this Agreement nor any provision hereof may be modified except by an instrument in writing, signed by the parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. SECTION 20 ADDITIONAL CERTIFICATIONS 20.01 DR Horton acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract, DR Horton certifies that DR Horton's signature provides written verification to the City that DR Horton: (1) does not boycott Israel; and(2) will not boycott Israel during the term of the contract. SECTION 21 IMMIGRATION AND NATIONALITY ACT 21.01 The City actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. DR Horton shall verify the identity and employment eligibility of all employees of DR Horton who perform work under this Agreement. DR Horton shall complete the Employment Eligibility Verification Form (1-9), 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 performs work under this Agreement. DR Horton 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. DR Horton shall provide City with a certification letter that it has complied with the verification D.R.Horton-Texas,Ltd.Adopt-A-:Median Agreement Page 10 of 20 1340.020\73208.3 requirements required by this Agreement. DR Horton 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 DR Horton. EXECUTED to be effective on the date set forth in Section 3. CITY OF FORT WORTH DR HORTON - TEXAS, LTD., a Texas Limited Partnership By: D.R. Horton, Inc., a Delaware Corporation, Its Authorized Agent yhardavala, Director* Benjamin Clark Pecreation Department Assistant Vice President * Richard Zavala has been delegated the proper authority to execute this document on behalf of the City pursuant to an Interoffice Memorandum from the City Manager dated October 1, 2015. Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitorin and administration of this contract, including ensuring all perfqhnofice and reporting requirements. By: Pafk O rations District Superintendent D.R.Horton-Texas,Ltd.Adopt-A-Median Agreement Page 11 of 21 1340.020\73208.3 EXHIBIT A MAP OF AREA Exhibit 'A' John T. White Road Median Landscape Improvements Trinity Oaks City of Fort Worth Tarrant County, Texas. PROJECT LOCATION INTERSTATE D.R.Horton-Texas,Ltd.Adopt-A-Median Agreement Page 12 of 20 1340.020\73208.3 EXHIBIT B WATER CONSERVATION/RATIONING PROCEDURES Water ConsmataVMomng Procedures Park d Reaeatori Department WATER CONSERVATION?RATIONING PROCEDURES PARK& RECREATION DEPARTMENT The purpose of these procedures is to provide a guide for watering activities in the Park&Recreation Department in the event of required water conservabon.rationing. Required water conservation rationing will be determined in accordance with the`Emergency Water Management Plan' adopted by the Fort Worth City Council in August 1999. in April 2014.the Fort Worth City Council amended the pian to approve Stage I Water Restrictions. Stage I Water Restrictions are permanent until approval of amendment by the Fort Worth City Council. As a general practice.the Park&Recreation Department makes every effort to use water wisely and efficiently in all its operations. However should water rationing be mandated by the City of Fort Wath.the Park& Recreation Department has established the following procedures dependent upon the level of conservation:rationing required. Four(4)levels are identified Level[Voluntary.Level IlrAlinor Rationing,Level lifhlajor Rationing(mandated rationing), and Level IVCrifical Emergency(crisis'disaster caused rationing). For each of these levels, there are categories including plants. i.e.. turf, trees. and flowers', facilities,i.e..golf courses,display fountains,and swimming pools,agreements.i.e..Adopt-A-Park'hledian,Public Improvement Districts,and the Zoo. Four some categories.there are notes which serve to explain special conditions. An example would be where non-treated river water is used. in the implementation of these procedures,the Park&Recreation Department will place the highest priority on the health and safety of people and wildlife. Protection andor preservation of both living and developed resources are also addressed as a high priority to preserve and�or protect these resources and infrastructure. JNV15 Page 1 of 5 D.R.Horton-Texas,Ltd.Adopt-ll-Median agreement Page 13 of 20 1340.020\73208.3 water Canservatimfit i ini g ftcedwes Park 6 Reaeation Depa timet CATEGORY LEVEL I LEVEL II LEVEL III LEVEL IV Voluntary Minor Rationing Major Rationing Critical-Emergency General Turf Two times per week. One time per week or in No water(most turf will go Same as Level III Tuesdays and Fridays. accordance with Ciy-wide dormant) rationing requirern Is Special Turf Two times per week One time per week or in No water(turf dies.) Same as Level III. A.City Hall Tuesdays and Fridays.(St. accordance with Citywide Augustine will not go dormant rationing requirements. and will die if not watered. B.WRAfC and Two times per week. One time per week or in No water(turf goes dormant). Same as Level III. Convention Tuesdays and Fridays- accordance with Citywide Some locations at Center rationing requirements. Convention Center have St. Augustine(turf dies). Athletic Fields Two times per week. One time per week to prevent No water. Same as Level III. Tuesdays and Fridayssoil aadci►g or it accordance with Citywide rationing requirements. Golf Courses No watering of roughs or No watering of roughs,tees and Hand waterilg of greens and Wataig with aver water filling lake areas. Restrict fairways,or fir"lake areas. firs year trees only. only. Where river water is watering to greens,tees, Water greens and first year trees not available,turf will go fairways,and first year trees 3 tines per week or in dormant. to 2 times per week. accordance with citywide Tuesdays and Fridays rationing requirements Display Fountains Continue to operate at Sane as Level I. Turn off water features. Same as Level III. standard levels because all Store remaining water for fountains operate with emergency paoses- recirculating pump systems Swimming Pools Continue to operate at Sarre as Level I Close pools. Store remaining Same as Level III. standard levels because all water for emergency Pools operate with purposes. recirculating pump systems. 1MV15 Page 2 45 D.R.Horton-Texas,Ltd.Adopt-ll-Median Agreement Page 14 of 20 1340.020\73208.3 Water Comise VMffdRaaMM ftteaxes Parc a ftaealion DM Meed CATEGORY LEVELI LEVELII LEVEL III LEVELIV Voluntary Minor Rationing Major Rationing Cnbcel-Emergency Adopt-A-Park Water to maintain plants at all Water to maintain plants at all No watering except trees or No watenng. Turf goes Adopt-A-Median sites. Water turf two times sites or in accordance with shrubs which would die. dormant,plants die. Sites per week.Tuesdays and Citywide rationing requirements. Fridays. Flowers Water two tires per week. Water one time per week or to No water(towers die— Same as Level III (replaceable— Tuesdays and Fridays. keep plants alae or in replace all plants next cycle). usually annual color) accordance with Citywide rationina reauirements. Contracts PID's. Water two times per week. Water one time per week or in No watering except trees or No watenrig. Leblanc,Burnett, Tuesdays and Fridays. accordance with Citywide shrubs which would die. Park Glen,etc_ rationing requirements. Botanic Garden Water two times per week. Water one time per week or in In accordance with Citywide Same as Level III. A General Turf Tuesdays and Fridays. accordance with Cilywide rationing requrements. rationing requirements. B. Fountans 8 Continue running Sam as Level I. Shut off all fountains Bent do Sam as Level Ill. Store Water Features (recrcdating pump systems)_ riot sustain fish and aquatic water for emergency 160. purposes. C. Flowers Water two tunes per week. Water one time per week or to No watering unless with river Sara as Level III. Tuesdays and Fridays. keep plants in accordance with water—plants will tie. CityvMe rationing requirements. Replace next cycle. D. Trees&shrubs Water two times per week. Water to keep plants alae or in Water to keep trees and Same as Levei Ill. Option to use rim water. accordance with Citywide shrubs alae or in accordance Tuesdays and Fridays. rationing mprements. Option with Citywide rationing to use river water. requirements. Option to use river water. Newly Planted Trees According to regular water Same as Level I or in Same as Level I or in No watering unless using schedule.Tuesdays and accordance with Cilyw ide accordance with Citywide untreated nop-potable Fridays. rationing requirements. rationing requirements. water 1DA1115 Pape 3 d5 D.R.Horton-Texas,Ltd.Adopt-A-Median Agreement Page 15 of 20 1340.020\73208.3 water ConseivatimRadorn procedures Park a Recreation Department CATEGORY LEVELI LEVELII LEVEL III LEVELIV Voluntary Minor Rationing hlajor Rationing Critical-Emer ency Zoo Convert(where available)to Extend cleaning cycles from 5 to Reduce water levels in pools No water. Store watIA. Large Non- well source. 10 days. by'/.. emergency purpose Barrier Pools B. General Turf Two times per week. One time per week o or in In accordance with Citywide No water. (public areas) Tuesdays and Fridays. accordance with Citywide rationing requirements. rationing requirements. C. Animal Area Two times per week. In accordance with Citywide Water to keep turf alive cr i1 No water. Turf Tuesdays and Fridays. rationing requirements. accordance with Citywide rationing requirements. D. Non-Barrier Will continue to operate Same as Level 1. No features to run. Same as Level 11. Waterfalls and because all are on Ponds recirculating pump systems E. Flowers Water two times per week. One time per week or it No water. Plants will die, Same as Level III. Tuesdays and Fridays. accordance with Citywide replace next cycle. rationing requirements. F Trees$Shrubs Normal water cycle. In accordance with Citywide Water to keep trees and No water. rationing requirements. shrubs alive or in accordance with Citywide rationing requirements- G, uirements.G. Public h" Continue to operate. Reduce hours of operation Features to be shut down. Same as Level III. Systems (Wantsn of three hors per day.) Gobs: 1. Pecan Valley ad Rockwood Golf Courses'water for irrigation is supplied 100%from the Trinity River. Therefore rho treated water is used at these sites. 2 Some inigahon water for Meadowbrook and Z Boaz Goff Courses a obtained from the rates and street drainage that flows Filo their pump takes. 3. All Adopt-A-Park1bdian,endowed,contracted,etc.sires arc to follow these procedures even it outside funding is paying for the water. Examples include rhe Fuller Garden,Burnett Park,Heritage Park,Public Improvement Districts,and LeBlanc Park 4. River water-Botanic Garden uses pumps lo circulate river water throughout the Gardens to water pterds and fill pools. ff this system goes down,they switch to City water. If this occurs,they will corhved to this Water ConservationlRation Plan. i At no point will the pian compromise animal restrains at the Zoo. 6. Pubic safety and humane treatment of the animals will take precedence over arty water conservation issues. 10001115 Pape 4 d 5 D.R.Horton-Texas,Ltd.Adopt-lir-:Median.-kgreelnent Page 16 of 20 1340.020\73208.3 Water Conservabom'Ratoning Procedures Park 8 Recreation Department Protected Items: Animals and wildlife such as fish.turtles,and ducks Drinking fountains shall continue to operate for public use Tree Watering Policy: The Park&Recreation Department will continue to water tees planted during the last two planting seasons in order to ensure their survival These trees are currently scheduled for weekly watering when necessary. Under emergency rationing only untreated non-potable water will be used to water newly planted trees. Any additional watering beyond what is currently committed will require additional resources having a general fund im pact. Also.any major plantings will be delayed until water conservation efforts are no longer necessary The Department will contact all parties who have entered into watering agreements with the Department to water newly planted trees and inform them of this policy. They will also be alerted of the need to conserve water to ensure judicious usage All contract and Adopt-A•Park Median sites,including those privately funded.shall adhere to the watering schedules established by this policy. Page 5 of 5 D.R.Horton-Texas,Ltd.Adopt-A-Median Agreement Page 17 of 20 1340.020\73208.3 EXHIBIT C TREE WATERING POLICY The DR Horton is hereby authorized to provide maintenance to trees planted in the area. 1. DR Horton will provide at their own expense all labor necessary to provide water to said trees. 2. DR Horton agrees to provide a minimum amount of water to maintain a consistently moist, but not wet root zone (a soil moisture content between the wilting point and field capacity). The watering is to continue for a minimum of two years. 3. DR Horton shall maintain the planting area by mulching and weeding the water ring that was constructed around each tree at the time of planting. Mulch for this purpose may be obtained at Rolling Hills Park at 2525 Joe B. Rushing Road. 4. In the event any City owned property such as utilities, equipment, turf, etc. are damaged or destroyed during watering or maintenance of the planting due to the negligence or acts of omission of DR Horton, DR Horton will be responsible for the cost of repair or replacement. 5. Inspections by a representative of the City will determine compliance with this agreement. DR Horton will be notified in writing in the event the representative observes drought stress due to lack of watering. DR Horton will be given a reasonable period of time to correct the problem. DR Horton shall remedy any issues within 30 calendar days after the City sends such written notice or within such time as agreed to otherwise by the parties in writing. 6. The City of Fort Worth reserves the right to modify or remove any planting as determined necessary by the Park& Recreation Department should any of the following occur: a) DR Horton ceases to maintain the planting. b) The planting become a hazard to the general public. C) The Director determines in his sole discretion that another beneficial use for the general public exists. This may include street relocation, street realignment, or another use of the property that is deemed beneficial to the general public. d) The City of Fort Worth determines in its sole discretion, to make use of the area for the installation of any public utilities or other City improvements. 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