HomeMy WebLinkAboutContract 55278 CSCO: 55278
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement"), authorized by the City Council on the
date indicated below, is by and between the City of Fort Worth, a home-rule municipality organized under
the laws of the State of Texas and D.R. Horton — Texas, LTD, an entity authorized to do business in
Texas.
A.
Definitions
In addition to any terms defined in the body of this Agreement, the following terms shall have the
definitions ascribed to them as follows:
"City"means the City of Fort Worth, Texas, and its officers,representatives, agents, servants, and
employees.
"Company" means D.R. Horton — Texas, LTD, a Texas corporation, and/or its partners,
representatives, members, managing members, officers, managers, proprietors, directors, employees,
representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns,
predecessors, stockholders, administrators, contractors, and related companies.
"Contract" means Fort Worth City Secretary Contract Number 47154, an Infrastructure
Construction Agreement ("ICA") between the City of Fort Worth and Company.
"Parties"means the City and Company.
B.
Recitals
WHEREAS, the City and Company entered into a Design Procurement Agreement (City
Secretary No. 45531) on April 22, 2014 for the purpose of having Company prepare, or have prepared,
design and construction documents for the construction of Basswood Boulevard generally from FM 156
to IH-35 W ("DPA"); and
WHEREAS, the City and Company entered into the ICA, Fort Worth City Secretary Contract
Number 47154, on or about October 23, 2015, for the purpose of engaging Company to manage, for no
fee, the construction of Basswood Blvd from Cloudcroft Lane to Horseman Road and Robert Downing
Road from Basswood Boulevard to Lou Menk Drive including related water, sewer, bridge and drainage
improvements (the "Project") with construction costs estimated at $6,625,127.45 based on publicly
procured competitive bids; and
WHEREAS, the City and Company entered into Community Facilities Agreement 2014-009,
(CSC 45513) on April 22, 2014 ("CFA"), whereby Company was making improvements to Basswood
Boulevard to serve new development in the area; and
WHEREAS, during the course of the Project, the City requested that Company revise plans and
specifications changing the intersection at Basswood Boulevard and Robert Downing Road from a
signalized intersection to a roundabout ("Changed Facilities") which Company performed with City
reimbursement (CSC 45531-At, M&C C-27318, 6-2-15); and
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
WHEREAS, the Company engaged a construction contractorto construct the Changed Facilities;
and
WHEREAS, the cost to construct the Changed Facilities was $673,110.99 and said amount is
hereby claimed by Company ("Claimed Amount"); and
WHEREAS, Company appears to have performed, or had performed, the Changed Facilities
work under the CFA rather than the ICA and neither contract was amended to reflect the change order to
construct the Changed Facilities; and
WHEREAS, the Contract was closed on May 2, 2018 and the City issued a final payment to the
Company for the original ICA amount; and
WHEREAS, the CFA was closed on or about October 28, 2015; and
WHEREAS, on or about August 27,2019, Company filed notice of a claim with the City seeking
the Claimed Amount; and
WHEREAS, the City investigated the Claimed Amount and finds that the amount claimed for the
Changed Conditions is fair and reasonable for construction at that time, is valid, and owed to the
Company; and
WHEREAS, except as may be set forth below in the terms of the Agreement, the Parties hereby
agree that the following terms and conditions shall constitute full and final settlement pertaining to the
payment of the Claimed Amount.
C.
Agreement, Release, & Covenants
NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants set forth
herein and intending to be legally bound hereby, stipulate and agree as follows:
l. The recitals set forth above are true and correct and form the basis upon which the Parties
have entered into this Agreement and are incorporated herein by reference.
2. The City hereby pays to the Company the amount of SIX HUNDRED SEVENTY
THREE THOUSAND ONE HUNDRED TEN DOLLARS AND NINETY-NINE CENTS ($673,110.99),
which represents the Claimed Amount for the work performed.
3. Upon full receipt of all amounts due to the Company pursuant to terms of this settlement,
the Company does hereby COMPROMISE, SETTLE, RELINQUISH, RELEASE, ACQUIT, and
FOREVER DISCHARGE the City from and against any and all claims, demands, debts, liens, costs,
expenses, actions, and causes of action of whatsoever nature, description of character, whether in tort or
in contract, or by virtue of the common law, statute, or regulation,known or unknown,heretofore existing
between the City and Company, whether known or unknown,which may have accrued or may accrue, on
account of, arising from, or in any manner growing out of, relating to, resulting from, or in any way
connected to Contract referenced herein.
Settlement Agreement and Release 2 of 5
4 The Parties warrant that no promise or inducement has been offered except as set forth
herein; that this Agreement is executed without reliance upon any statement or representation of any
person or Party's release, or its representatives, concerning the nature and extent of the losses, injuries,
damages, and/or legal liability- therefore; and that the acceptance of the consideration set forth herein is in
full accord and satisfaction of all claims set forth herein.
5. Tt is understood that this is a compromise of a claim. The City and Company desire to
compromise and settle all matters and things to avoid the hazard, inconvenience, uncertainty, and expense
of litigation.
6. The Company represents and warrants that it is the sole owner of the claims, causes of
actions, and rights-in-action being released herein, and it has not transferred, assigned, or otherwise
encumbered said claims or any part thereto.
7. The Parties hereto shall not assign or transfer their interests and obligations set forth in
this Agreement without the prior written consent of the other parties, and any attempted assignment or
transfer of all or any part hereof without such prior written consent shall be void.
8. This instrument contains the entire agreement between the Parties as to the matters
contained herein and the terms of this instrument are contractual and not merely recitals. There are no
other agreements, either written or oral, and this Agreement supersedes all earlier representations,
negotiations, or agreements about this matter. The Parties acknowledge that the covenants,promises, and
representations made herein are binding on, and inure to, the benefit of each of the Parties.
9. The Parties represent that they have consulted, or had the opportunity to consult, an
attorney to seek legal counsel regarding the contents and effects of this Agreement. The Parties further
represent that they have been informed of the content and effect of this instrument and that the instrument
is executed as their act and deed and of their own free will.
10. In the event that any provision of this Agreement is held void, voidable, or
unenforceable, the remaining portions shall remain in full force and effect.
H. 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 Division. This
Agreement, including any exhibits, shall be construed in accordance with the laws of the State of Texas.
12. The Parties represent and warrant that they are over the age of eighteen (18) years,
competent to execute this Agreement, have carefully read the foregoing Agreement, and know the
contents thereof and have signed the same of their own free will and with the advice of counsel, if
applicable.
13. This Agreement may be executed in several counterparts, each of which will be deemed
an original, but all of which together will constitute one and the same instrument. A signature received
via facsimile or electronically shall be as legally binding for all purposes as an original signature.
Settlement Agreement and Release 3 of 5
14. It is understood that by execution of this Agreement, the City does not waive or surrender
any of its governmental powers or immunities.
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective on the
date subscribed by the City's duly designated Assistant City Manager.
CITY OF FORT WORTH D.R.HORTON TEXAS, LTD,
a Texas limited partnership,
By: D.R. Horton, Inc.,
a Delaware corporation,
its authorized agent
a S7�/- V #/2 C411-1(
Dana Burghdoff(Jan 11,20 12:35 CST Benjamin Clark(Dec 28,202015:05 CST)
by: by.
Dana Burghdoff Benjamin Clark
Assistant City Manager Assistant Vice President
Date:
Jan 11, 2021 Date: Dec 28, 2020
APPROVED AS TO FORM Recommended By:
AND LEGALITY:
DBlack(Jan11,202112:24CST) by:DJ Harrell(Jan5,2( ST)
Douglas W Black DJ Harrell
Sr. Assistant City Attorney Development Services Director
City of Fort Worth
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Mary J. Kayser ,0 ��=d
City Secretary o c
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M&C 20-0925 aa4 nEa's *�
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
Settlement Agreement and Release 4 of 5
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day
personally appeared Dana Burghdoff, Assistant City Manager of the City of Fort Worth, known to me to
be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the
same was the act of the CITY OF FORT WORTH, for the purpose and consideration therein expressed
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 15th day of January 2021
LAURIE Digitally signed by LAURIE
PEQUENO LEWIS
PEQUENO LEWIS Date:2021.D1.1510:25:37-06'00'
149
LAURIE PEQUENO LEWISNotary Public Notary Public in and for
STATE OF TEXASThe State of Texas
Notary LD. 132278952My Comm.Exp.Dec. 10,2023
STATE OF TEXAS §
COUNTY OF AV VQV1 � §
BEFORE ME, the undersigned authorit , a Notary ublic in and for the State of Texas, on this day
personally appeared(�je0iaVA1V1 C yp of D.R. Horton, Inc., a Delaware
corporation, authorized agent of D.R. Horton-Texas, Ltd., a Texas limited partnership, known to me to be
the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same
was the act of D.R. HORTON— T EXAS, LTD., for the purpose and consideration therein expressed
and in the capacity therein stated.GIVEN UNDER MY HAND AND SEAL OF OFFICE this -1
tay of 50M tkQ KA, 20'A.
E10,
1114 RUTH RESENDEZ
Q111. Notary Public in and for
Notary Public, State of TexasComm. Expires 11-01-2022 The State of Texas
Notary ID 131781375
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
Settlement Agreement and Release 5 0 5
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 12/15/20 MSC FILE NUMBER: M&C 20-0925
LOG NAME: 06BASSWOOD BLVD ICA AMENDMENT&FUNDING
SUBJECT
(CD 2)Authorize Execution of a Settlement Agreement with D.R. Horton—Texas, Ltd., in the Amount of$673,110.99 for Costs Related to
Construction of a Roundabout at Basswood Boulevard and Robert W. Downing Road and Adopt Appropriation Ordinance
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize execution of a Settlement Agreement with D.R. Horton—Texas, Ltd. in the amount of$673,110.99 for costs related to the
construction of a roundabout at Basswood Boulevard and Robert W. Downing Road; and
2. Adopt the attached appropriation ordinance increasing appropriations in the Developer Contribution Fund in the amount of$686,150.00
from available funds for the purpose of funding a Settlement Agreement with DR Horton-Texas, Ltd related to costs for the construction of a
roundabout at Basswood Boulevard and Robert W. Downing Road.
DISCUSSION:
This Mayor&Council Communication(M&C)will authorize settlement of a claim brought by a developer,who constructed city facilities under an
Infrastructure Construction Agreement(ICA)and a Community Facilities Agreement(CFA),for the costs, in the amount of$673,110.99, related to
constructing an intersection that was changed from a signalized intersection to a roundabout.
On August 18,2015(M&C C-27425),the City Council authorized the execution of an ICA with D.R. Horton—Texas, Ltd. (Horton)for construction
of a segment of Basswood Boulevard from Cloudcroft Lane to Horseman Road and Robert W. Downing Road from Basswood Boulevard to Lou
Menk Drive, in an amount not to exceed$6,928,910.99. At the same time, Horton was also constructing portions of Basswood Boulevard to
serve its development under a CFA(City Secretary Contract No.45513). During the course of construction,the City initiated a change to the
proposed intersection design at Basswood Boulevard and Robert W. Downing Road from a signalized intersection to a roundabout. The City
requested that Horton perform the work at the cost of$673,110.99; however, memorialization of this change was inadvertently not incorporated into
the ICA and the work was performed under the CFA.
In August 2019, Horton made a claim for reimbursement of the additional costs for the intersection change. Staff researched the claim and finds it
is valid and owed.
The funding for this settlement agreement is being appropriated from the Developer Contribution Fund. In 2016,after the design and construction
of Basswood Boulevard had been authorized by Council, Saginaw 106, Ltd. began developing a residential subdivision on the north side of
Basswood Boulevard between Blue Mound Road and Robert W. Downing Road. Since their Basswood Boulevard frontage was included in the
ICA work,they paid the City$686,150.00 for their proportionate share of that frontage and intersection improvements. Those funds are being
appropriated to pay for the additional costs of the intersection change.
This project is located in COUNCIL DISTRICT 2.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are currently available within the CFA Basswood FM 156 to Almondale project within the Developer
Contribution Fund and upon approval of the above recommendations and adoption of the attached appropriation ordinance, funds will be available
within this project. Prior to an expenditure being incurred,the Development Services Department has the responsibility of verifying the availability
of funds.
Submitted for City Manager's Office by: Dana Burghdoff 8018
Originating Business Unit Head: DJ Harrell 8032
Additional Information Contact: Janie Morales 7810
Julie Westerman 2677
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract,including
ensuring all performance and reporting requirements.
Mirian D. Spencer
40601-Z'--
Name of Employee/Signahare
Sr. Project Controls Specialist
Title
❑ This form is N/A as No City Funds are associated with this Contract
Printed Name Signature
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX