HomeMy WebLinkAboutContract 36154 C►TY SECRETARY
CONTRACT No.
DEVELOPER AGREEMENT
WITH
USEUM PLACE DEVELOPMENT GROUP, LTD.
THIS AGREEMENT is made and entered into thisoUday of 2007, by and
between the City of Fort Worth, a home rule municipal corporation situated in Tarrant and
Denton and Wise Counties, Texas (hereinafter referred to as the "City') acting by and through its
duly authorized Assistant City Manager and Museum Place Development Group Ltd, a private
corporation situated in Tarrant County, Texas (hereinafter referred to as "Developer") acting by
and through its duly authorized President.
WHEREAS, on January 19, 2006 the City Council of Fort Worth adopted Mayor &
Communication No. G-15065 authorizing the City Manager to nominate the Museum Place
Streetscape Sustainable Development Project ("Project") for the North Central Texas Council of
Governments ("NCTCOG") Sustainable Development Program ("Program") for streetscape
improvements including sidewalks, trees, and street lights along 7th Street, 6th Street, Arch
Adams Street, Bailey Avenue, Camp Bowie Boulevard, and Boland Street in Fort Worth ; and
WHEREAS, the Program is an initiative of the Regional Transportation Council (RTC)
to improve regional air quality, mitigate growing traffic congestion, and address long-term
transportation funding constraints and the Program provides funding for transportation projects
that support private mixed-use development within a pedestrian and/or rail transit environment;
and
WHEREAS, on February 24, 2006, NCTCOG nominated the City of Fort Worth to
receive a grant in the amount of$2,400,000 through the Program for the Project; and
WHEREAS, on April 13, 2006, the RTC selected the Project for funding through the
Program; and
WHEREAS, on June 20, 2006 the Fort Worth City Council approved Mayor and
Council Communication No G-15246, authorizing an Interlocal agreement with the NCTCOG for
the Project and the execution of a community facilities agreement with n-Mtr5�1T � ���
Development Group, LTD; and
L J ^ P
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WHEREAS,[ the Interlocal Agreement requires that the City of Fort Worth will serve as
the lead Project cont9ct and supports the overall land use concept and development of the Project
scope as presented land applied for to the RTC; endorses the Project scope; confirms the
participation of a prii, ate sector partner in Museum Place Development Group, Ltd; and approves
the Project timing to be complete by May 1, 2009; and
WHEREAS, the City of Fort Worth will fund or pass through funds from the private
sector for a local match of 20 percent($600,000.00) of the total project cost($3,000,000.00). The
local cash match will be paid prior to the Notice to Proceed and will be reimbursed in its entirety
when expenditures reach 80 percent of the Project total and 80 percent of the total Project cost
will be reimbursed upon completion of the Project; and
WHEREAS, on June 5, 2007 the City Council adopted Mayor& Communication
No C —22166 authorizing the City Manager to enter into a Developer Agreement with Museum
Place Development Group, Ltd. in support of the Museum Place Streetscape Sustainable
Development Project;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein,the parties hereto do hereby covenant and agree as follows:
SECTION 1.
PROJECT
Section 1.1 The RTC has selected the Museum Place Streetscape Sustainable Development
Project (hereinafter referred to as "Project" and as described below) for funding through the
North Central Texas Council of Governments Land Use/Transportation Venture Program in the
amount of$2,400,000. The Project Area is depicted in Exhibit A, attached and incorporated into
this Agreement.
Section 1.2 The Museum Place Streetscape Sustainable Development Project has been
designed to be pedestrian friendly and to encourage an active neighborhood. Plans for the
Project include wide sidewalks and easy access to nearby cultural, commercial, and residential
areas including the museum district and the Will Rogers western heritage complex. Specific
attention has been paid to safety improvements such as enhanced street lighting, traffic
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calming devices, d fined crosswalks with special paving patterns, bulb-out to narrow street
crossing distances t intersections specially designed on-street parking. Enhanced paving,
plazas, street trees landscaping and irrigation will create an attractive environment for
residents and visit rs. ADA related improvements, benches, and trash receptacles will be
designed to make the area user friendly and accessible.
Section 1.3 The Developer will install and complete Pedestrian amenities and improvements
along 7th Street, 6th Street, Arch Adams Street, Bailey Avenue, Camp Bowie Boulevard, Barden
Street University Street, and Boland Street, including but not limited to plazas, sidewalks,
crosswalks, benches, trash receptacles, street trees, street lighting and landscaping, as listed in
Exhibit B, attached and incorporated into this Agreement.
SECTION 1.
PROJECT
Section 2.1 Total funding for the Project shall be $3,000,000.00, to include $2,400,000.00
from the North Central Texas Council of Governments and a 20% cash local match of
$600,000.00 from the Developer as depicted on Exhibit C, attached, incorporated and made a part
of this to this Agreement.
Section 2.2 On. r- E , 2007,Camp Bowie District, Inc. paid to the City the amount
of$600,000.00 cash,the 20 percent local contribution as required by the Program.
Section 2.3 In addition to the local contribution of $600,000.00, the Developer shall be
responsible for all non-federal participation costs associated with the Project, including any
overruns in excess of the total grant award and any operating or maintenance expenses.
Section 2.4 Developer acknowledges that the RTC reserves the right to remove funding from
the Project if it is no longer supported by both local partners. The Developer also acknowledges
that the RTC reserves the tight to remove funding from a project for which the local sponsor is
unable or unwilling to sign a local match agreement to implement the Project.
Section 2.5 Items for which the funding amount for this Agreement are not eligible include,
but are not limited to: construction or rehabilitation of private buildings, artwork, fountains,
installation and/or r habilitation of sewer lines, parking garages, earthwork necessary to raise
proposed buildings out of the floodplain,and other items not directly related to mobility.
Section 2.6 Iterni for which the funding amount in this Agreement are eligible include, but
are not limited to: roadways, intersection improvements, bus stops, sidewalks, shade trees,
landscaping, pedestrian/bicycle paths,transit stations and right of way or easements necessary for
transportation facilities. Such items must be (a) physically located within or along the limits of
the Project, or (b) located within walking distance of the Project (1/2 mile depending on site
conditions), or (c) directly related to either the roadway or rail access necessary to make the
Project viable.
SECTION 3.
GENERAL CONDITIONS
Section 3.1 City shall not be responsible for the cost of any work, including but not limited to
any necessary permits, licensed or taxes incurred or required for the Project.
Section 3.2 The Project area subject to the scope of services contained in this Agreement
must at all times be kept free of mechanics and materialmen's liens.
Section 3.3 Any improvements, additions, alterations and fixtures constructed, placed, or
maintained on any part of the publicly owned spaces of the Project Area during the Agreement
Term are considered part of the real property of the Project Area and must remain on the Project
Area, and title/ownership to all permanent improvements, additions, alterations and fixtures on
the publicly owned spaces of the Project area shall vest in the City.
SECTION 4.
SERVICES
PHASES AND SCHEDULES
Section 4.1 The services to be performed by Developer shall include the scope of services
listed in Exhibit B, attached, incorporated and made a part of this Agreement.
Section 4.2 The work for the entire project shall be completed on or before May 1, 2009.
Developer shall be required to pay any additional costs related to the Project if the Project is not
completed on or before May 1,2009.
Section 4.3 The City and Developer will enter into a Community Facilities Agreement(CFA)
before undertaking any work on the Project. Developer will not undertake or cause to be
undertaken any work ion the Project until the CFA and this Agreement have been executed by all
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parties and is in full force and effect. Developer hereby agrees to comply with all terms and
conditions of any CFA and this Agreement with the City covering the Project.
Section 4.4 The ',Developer agrees that infrastructure built with local funds will follow the
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administrative process and design standards of the City of Fort Worth. If federal funds must be
used,the City supports the use of state and federal design guidelines.
SECTION 5.
COORDINATION WITH CITY
Section 5.1 The City of Fort Worth Department of Planning and Development shall be the
primary contact and coordinator for the Project. City of Fort Worth shall make available to
Developer for use in performing services hereunder all data in City's possession relative to the
Project.
SECTION 6.
PROGRESS REPORT
Section 6.1 City shall coordinate monthly meetings with Developer, and Developer shall
submit quarterly progress reports to City in a format acceptable to the City.
SECTION 7.
TRANSFER OF AGREEMENT
Section 7.1 Developer shall not assign,sublet or transfer, in whole or in part, its interest in
this Agreement without the prior written consent of City.
SECTION 8.
TERMINATION OF AGREEMENT
Section 8.1 All terms, conditions and specifications of the Agreement shall be considered
material, and failure to perform any part of the Agreement shall be considered a breach of
Agreement. Should Developer fail to remedy any breach of Agreement within 14 days after
written notification to Developer of the violation, City may, at its option and in addition to any
other remedies available to it under law, terminate the Agreement. The Agreement shall not be
terminated, however, if Developer has commenced to cure the breach within said 14-day period,
and thereafter pursues such cure with reasonable diligence and in good faith. Upon receipt of
such notice of termination and after said 14-day cure period, Developer shall immediately
discontinue all services and work and the placing of all orders or the entering into Agreements for
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supplies, assistance, facilities, and materials, in connection with the performance of this
Agreement and shal proceed to cancel promptly all existing agreements insofar as they are
chargeable to this A eement.
SECTION 9.
INDEPENDENT CONTRACTOR
Section 9.1 Developer covenants and agrees that it will perform the work hereunder as
independent contractor, and not as an officer, agent, servant, or employee of City. Developer
shall have exclusive control of and the exclusive right to control the details of the work performed
hereunder, and all persons performing same, and shall be solely responsible for the acts and
omissions of its officers, agents, employees, contractors, subcontractors, and consultants; that the
doctrine of respondent superior shall not apply as between City and Developer, its officers,
agents, employees, contractors, subcontractors, and consultants, and nothing herein shall be
construed as creating a partnership or joint enterprise between City and Developer.
SECTION 10.
INDEMNITY AND INSURANCE
Section 10.1 Approval by City of this Agreement shall not constitute or be deemed to be a
release of the responsibility and liability of Developer, its officers, agents, employees, contractors
and subcontractors for the accuracy and competency of the services performed under this
Agreement, including but not limited to surveys, designs, working drawings and specifications
and other engineering documents. Such approval shall not be deemed to be an assumption of such
responsibility and liability by City for any negligent act, error or omission in the performance of
Developer's professional services or in the conduct of the duties listed in the scope of services
listed in Exhibit B.
Section 10.2 DEVELOPER AGREES TO DEFEND, INDEMNIFY AND HOLD THE
CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST
ANYAND ALL CLAIMS, LA WSUITS,ACTIONS, COSTS AND EXPENSES OFANYKIND,
INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS
(INCLUDING ALLEGED DAMAGE OR LOSS TO DEVELOPER AND/OR DEVLOPER'S
SUBCONTRACTOR BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR
PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF
OR BE OCCASIONED BY (i) DEVELOPER'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR (ii)ANY NEGLIGENT ACT OR OMISSION OF
DEVELOPER, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS
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(OTHER THAN TFIE CITY) OR SUBCONTRACTORS, RELATED TO THE PROJECT OR
THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY
RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS RESPECTIVE
OFFICERS, AGE.4TS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE
EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH DEVELOPER AND
CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section 10.3 Developer agrees that all consultants hired by Developer to perform any work
under this Agreement shall obtain Professional Liability Insurance in the minimum amount of
$1,000,000 and shall include coverage of Contractually Assumed Liability. All insurance
coverage shall be maintained until completion of the work by the consultant and shall not be
canceled without prior written notice to City. A Certificate of Insurance shall be furnished to
City prior to the consultant beginning work and contain the provision that such insurance shall
not be canceled or modified without thirty (30) days prior written notice to City. Developer shall
notify City within ten (10) days of any modification or alteration to such Professional Liability
Insurance.
SECTION 11.
RIGHT TO AUDIT
Section 11.1 Developer agrees that City shall, until the expiration of three (3) years after final
payment under this Agreement, have access to and the right to examine and photocopy any
directly pertinent books, documents, papers and records of Developer involving transactions
relating to this Agreement. Developer agrees that City shall have access during normal working
hours to all necessary Developer facilities and shall be provided adequate and appropriate
workspace in order to conduct audits in compliance with the provisions of this section.
Section 11.2 Developer further agrees to include in all its subcontracts hereunder a provision
to the effect that the subcontracting consultant agrees that City shall, until the expiration of three
(3) years after final payment under the subcontract, have access to and the right to examine any
directly pertinent books, documents, papers and records of such contractor, involving appropriate
work space, in order to conduct audits in compliance with the provisions of this section together
with subsection hereof. City shall give the contractor reasonable advance notice of intended
audits.
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SECTION 12
NOTICES
Section 12.1 All ritten notices called for or required by this Agreement shall be addressed to
the following, or su1h other party or address as either party designates in writing, by certified
mail,postage prepaid, or by hand delivery:
City: Museum Place Development Group, LTD.:
Attn: Fernando Costa, Attn: H. Reece Pettigrew
Director of Planning Museum Place Development Group, LTD.
1000 Throckmorton 2918 Wingate
Fort Worth,Texas 76102 Fort Worth,Texas 76107
with a copy to:
Attn: City Attorney
City Attorney's Office
1000 Throckmorton
Fort Worth, TX 76102
SECTION 13.
RULES AND REGULATIONS
Section 13.1 This Agreement will be subject to all applicable federal, state and local laws,
ordinances and rules and regulations, including, but not limited to, all provisions of the City's
Charter and ordinances and zoning regulations, as amended and all federal, state and local
provisions and procedures in accordance with the Program.
SECTION 14.
SEVERABILITY
Section 14.1 If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired_
SECTION 15.
PARAGRAPH HEADINGS
Section 15.1 Captions and headings used in this Agreement are for reference purposes only and
shall not be deemed a part of this Agreement.
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SECTION 16.
SUCCESSORS AND ASSIGNS
Section 16.1 City land Developer each bind themselves, their successors and assigns, to the
other party to this Agreement and to the successors and assigns of each other party in respect to
all covenants of this�greement.
SECTION 17.
VENUE-LAW/APPLICABLE LAWS
Section 17.1 If any action, whether real or asserted, at law or in equity, arises on the basis of
any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant
County, Texas or the United States District Court for the Northern District of Texas —Fort Worth.
This Agreement shall be construed in accordance with the laws of the State of Texas
Section 17.2 The laws of the State of Texas shall govern this Agreement and relationship
created hereby.
SECTION 18.
GOVERNMENTAL POWERS
Section 18.1 It is understood that by execution of this Agreement, the City does not waive or
surrender any of its governmental powers.
SECTION 19.
EXHIBIT LIST
The following exhibits are hereby incorporated into this Agreement:
Exhibit A: Boundary Map
Exhibit B: Scope of Services
Exhibit C: Funding Contribution
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IN TESTIMONY WHEREOF, City of Fort Worth has caused this instrument to be signed in
quintuplet in its name and on its behalf, by its Assistant City Manager and attested by its City
Secretary and Museum Place Development Group, Ltd. also has properly executed this
instrument in triplicate copies each of which is deemed an original.
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EXECUTED in the City of Fort Worth,this day of 2007.
C�TY OF FORT WORTH ATTEST:
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By. By:AIL
Da1c Fissalcw 0 Ma y Hendrix
Assistant City Manager Q City Secretary
APPROVED AS TO FORM AND LEGALITY: APPROVAL RECOMMENDED:
By:4A 1� 'UX(kfk �fil1JY�11J� By: �.,e .
Melinda Ramos Fernando Costa
Assistant City Attorney Planning& Development Director
MUSEUM PLACE DEVELOPMENT GROUP LTD.
By: JaGee GP, LLC, its G neral Partner
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By:
Richard F. Garvey, ident
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EXHIBIT B
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SCOPE OF SERVICES
Museum Place Development Group, Ltd. will commit to the following tasks within the
boundary area described in Exhibit A:
Construction of pedestrian amenities including but not limited to plazas, sidewalks,
crosswalks, special paving, curb bulbs, street lighting, street trees, landscaping, benches,
bollards, and trash receptacles, as generally described in the attached "Museum Place
Design Guidelines for Streetscape Improvement", dated 1-27-2006. This document was
submitted as part of the application process for the Sustainable Development Grant.
Construction will substantially conform to this document, with the understanding that
there will be some variation from the document in patterning, spacing of elements, and
specifications due to further refinement of the design.
Museum Place
Project Estimated Timeline
Overall Project
Site Design and Prelim. Platting January 2005 —December 2007
Subgrade Utility Infrastructure September 2006—September 2007
Streets Reconstruction June 2007—October 2007
Block A
Design and Platting August 2007—December 2007
Building Construction January 2008 —December 2008
Streetscape Construction November 2008—February 2009
Block Al (Post Office
Design and Platting January 2005—February 2007
Building Construction April 2007—December 2007
Streetscape Construction November 2007—February 2008
Block A2 (Corner Store)
Design and Platting October 2004 —April 2007
Building Construction April 2007—December 2007
Streetscape Construction November 2007—February 2008
Block B
Design and Platting April 2007— September 2007
Building Construction October 2007—December 2008
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Streetscape Construction November 2008—February 2009
Block B1
Design and Plattin January 2007—June 2007
Building Construc�on July 2007—March 2008
Streetscape Construction January 2008—April 2008
Block C
Design and Platting January 2007—August 2007
Building Construction September 2007—August 2008
Streetscape Construction June 2008 —September 2008
Block D
Design and Platting August 2006—April 2007
Building Construction May 2007—April 2008
Streetscape Construction March 2008 —June 2008
EXHIBIT C
FUNDING CONTRIBUTION
Proiect Fundinu Sources
Cash In-Kind Total
Sustainable Development $2,400,000 $0 $2,400,000
Program
Museum Place Development $600,000 $0 $600,000
Group Ltd.
TOTAL FUNDS $3,000,000 $0 $3,000,000
Proiect Funding Allocation
Block A Al A2 B B1 C D Total
Sidewalk & Plaza
Area (S.F.) 30,100 4,400 3,300 20,400 13,500 41,100 34,000 146,800
Percent of Total 20.5% 3.0% 2.2% 13.9% 9.2% 28.0% 23.2% 100.0%
Portion of Funding $ 615,123 $ 89,918 $ 67,439 $ 416,894 $ 275,886 $ 839,918 $ 694,823 $ 3,000,000
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 6/5/2007
DATE: Tuesday, June 05, 2007
LOG NAME: 06MUSEUMPLACE REFERENCE NO.: C-22166
SUBJECT:
Authorize the Execution of a Developer Agreement with Museum Place Development Group, Ltd.,
for the Museum Place Sustainable Development Project
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the execution of a developer agreement with Museum Place Development Group, Ltd., for the
Museum Place Sustainable Development Project; and
2. Authorize a change in the name of the provider of the local matching funds from Cultural District
Development Initiatives, Inc., to Camp Bowie District, Inc.
DISCUSSION:
On June 20, 2006, (M&C G-15246) the City Council approved the following items for the Project:
1. Adopted a resolution to enter into an interlocal agreement (ILA) with the North Central Texas Council of
Governments (NCTCOG) for the Project;
2. Authorized the City Manager to accept Sustainable Development funds in the amount of $2,400,000
from NCTCOG;
3. Authorized acceptance of funds from Cultural District Development Initiatives, Inc., in the amount of
$600,000 for the local match;
4. Authorized execution of an Enhanced Community Facilities Agreement with Cultural District
Development Initiatives, Inc.;
5. Adopted an appropriation ordinance increasing the estimated receipts and appropriations in the Grants
Fund by $3,000,000; and,
6. Authorized payment of $600,000 to NCTCOG in lieu of administrative fees, with the understanding that
these funds will be reimbursed in full upon Project completion.
The City Council authorized acceptance of funds from Cultural District Development Initiatives, Inc., in the
amount of $600,000 for the local match. However, Cultural District Development Initiatives, Inc., will not be
the entity providing the local match. Camp Bowie District, Inc., will provide the local match. This change is
reflected above as the second recommendation.
Upon approval of this M&C, staff will execute a developer agreement with Museum Place Development
Group, Ltd., to construct street, pedestrian, and landscape improvements for the Museum Place
Logname: 06MUSEUMPLACE Page 1 of 2
Development, thus completing a necessary step to receive a Notice to Proceed from NCTCOG.
This project is located in COUNCIL DISTRICT 7.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifiE s that this action will have no material effect on City Funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office bv: Dale Fisseler (6266)
Originating Department Head: Fernando Costa (8042)
Additional Information Contact: Randy Hutcheson (8008)
Logname: 06MUSEUMPLACE Page 2 of 2