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HomeMy WebLinkAboutContract 58936ST ATE OF TEXAS § § COUNTY OF TARRANT § CITY SEC RETARY sro. -:1./ GONTRACTNO. n Jv-,, ___ ....., ___ _ Interlocal Cooperation Agreement for Wichita Street Widening Proiect This Interlocal Cooperation Agreement for the Wichita Street Widening Project ("Agreement") is made and entered as of the Effective Date by and between the City of Fort Worth, Texas ("Fort Worth"), a Texas home rule municipality, and the City of Forest Hill, Texas ("Forest Hill"), a Texas home rule municipality. Fort Worth and Forest Hill are sometimes referred to in this Agreement together as the "Parties" and each individually as a "Party." Recitals: WHEREAS, a public road commonly referred to by the Parties as Wichita Street is located within the incorporated limits of the Parties; and WHEREAS, Forest Hill has entered into that certain Funding Interlocal Agreement for Wichita Street Widening between Forest Hill and Tarrant County ("County") dated and effective December 13, 2022, ("the County ILA") setting forth the agreement between Forest Hill and County regarding the funding, right-of-way acquisition, utility relocations, and construction associated with the widening and reconstruction of Wichita Street from an existing 2-lane asphalt roadway, from IH-20 to Roy Brooks Boulevard, into a 5-lane undivided curb and gutter roadway with continuous median tum-lane and improvements that will also include drainage improvements to the north fork of South Creek and South Creek crossings with an enclosed stormwater system to minimize current flooding conditions and traffic signalization, illumination, and a 10-foot shared-use path ("the Project"); and WHEREAS, pursuant to the provisions of the County ILA, County has agreed to provide funds up to the amount of $11,100,000.00 for construction to be paid to Forest Hill on a reimbursement basis toward the cost of construction of the Project (this does not include up to $700,000.00 which County will pay for right-of-way acquisitions to be conducted by County); and WHEREAS, County is separately funding design of the Project; and WHEREAS, the County ILA acknowledges that Forest Hill will pay $2,390,000.00 toward the cost of the Project and Fort Worth will pay $500,000.00 toward the cost of the Project; and WHEREAS, a portion of Wichita Street, specifically from 340 feet north of Alta Mesa to 960 feet south of Joel East Road, lies wholly within the City of Fort Worth's city limits ("Fort Worth Segment"), the same being identified on all relevant Fort Worth plans and subject to Fort Worth design standards; and WHEREAS, development is occurring in Fort Worth, Forest Hill and Everman which necessitates the Project to accommodate growth; and WHEREAS, Holt Lunsford Commercial, Inc. ("Devel~p~!') plans to develop land within Fort Worth which will access Wichita Street and Develo~thas ~agreed ~ 6 . se'" ate agreement F Page 1 Interlocal Cooperation Agreement for Wichita Street TMl33160 with the City of Forest Hill , to pay $2 ,390 ,000 to the City of Forest Hill , which Forest Hill has agreed to use toward the costs of the Project (the "Forest Hill Contribution"); and WHEREAS , the Parties desire to set forth their agreement regarding their respective responsibilities relating to the Project including , but not limited to , the process for paying their respective contribution as required by the County ILA ; and WHEREAS, the Texas Interlocal Cooperation Act (Chapter 791 , Texas Govt. Code, as amended) authorizes Texas municipalities and other local governments to contract with one another to perform governmental functions and services , including all or part of a function or service in public health and welfare , streets , roads , drainage , engineering , and other go vernmental functions in which such local governments are mutually interested ; and WHERAS, the functions and services of the Parties set forth in this Agreement are governmental functions and services which each City is authorized to perform and provide, and the terms , conditions , and provisions of this Agreement are in support of and further the public health , safety , welfare , and convenience of the citizens of each of the Parties and are in the public interest ; NOW, THEREFORE, for and in consideration of the above and foregoing recital s, the mutual benefits and obligations set forth herein , and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged , the Parties agree as follows: Section 1. Proiect Construction. The Parties understand, acknowledge , and agree that construction and acceptance of the Project requires certain steps for completion, including , but not limited to , design, bidding , construction , and payment , and the same shall be in accordance with the following: A. The Parties understand, acknowledge , and agree that County has contracted with DEC-North Texas, LLC , a professional engineering firm which employ s professional engineers registered in the State of Texas ("Engineer") to perform and provide the design and engineering work and other services relating to the Project, including the creation of the plans and specifications for the construction and/or installation of the Project ("the Project Plans") and that Engineer will present Project Plans to Forest Hill for review and approval. Fort Worth shall be presented with the Project Plans for the Fort Worth Segment for re view and comment during the development of same on the same graduated completion schedule (e.g. 30%, 60%, 90%, and final completion) as the overall Project Plans are presented to Forest Hill. Should there be a conflict between County, Forest Hill , and Fort Worth design standards , Engineer shall apply the design standards for the city within which the majority of the Project lies and , if necessary , seek relief from the conflicting standards of the Party with the lesser amount of Wichita Street within its city limits. B. Forest Hill shall not authorize approval of and/or changes to the Project Plans which either (i) change any portion of the Project located within Fort Worth 's incorporated limits or (ii) which will result in a change order that increases the time for construction of the Project without the prior written consent of Fort Worth. Page 2 Interlocal Cooperation Agreement for Wichita Street Project TMl33 160 C. The Parties acknowledge that once the Project Plans are complete, Forest Hill will competitively procure and award a contract for the Project to the Contractor selected (the "Contractor"), all in accordance with state law. Forest Hill represents and warrants that the process for selecting the Contractor to construct the Project shall be in compliance with the requirements for competitive procurement for public works projects. Forest Hill shall be obligated to pay all amounts due to the Contractor for the Project (the "Project Costs"). Forest Hill shall be responsible for directly making payments to Contractor pursuant to its contract with Contractor. To the extent feasible as determined by Forest Hill , Forest Hill will program the Forest Hill Contribution toward the Fort Worth Segment but any portion of the Forest Hill Contribution for which such programming is not feasible shall be programmed for and incorporated into the overall Project. D. The Parties agree that the construction contract to be awarded for the Project and executed by Fore st Hill and the Contractor shall at all times require and provide, among other things , that: (1) The Contractor shall obtain from each of the Parties all permits required by the respective Party to construct the Project and comply with all applicable ordinances, codes, rules and regulations, including pre-qualification of contractors and subcontractors, of the Party in whose incorporated limits the applicable portion of the Project is being performed ; (2) For any change order affecting the Fort Worth Segment, such change order, to be effective, shall require the signature of both Fort Worth and Forest Hill. If approval by one Party of some item or matter is required hereunder or is requested by the other Party, the Party to whom the request is made will not unreasonably withhold, delay, or condition its response to such request; (3) All insurance policies held by the Contractor that are endorsed to name Forest Hill as an additional insured shall also name Fort Worth as an additional insured; (4) Indemnity obligations of the Contractor that are made in favor of Forest Hill (and its officials, officers, employees, and agents) shall also be made in favor of Fort Worth (and its respective officials, officers, employees, and agents); and (5) The performance bond , payment bond, and two-year maintenance bond provided by the Contractor in accordance with law, shall name Fort Worth, in addition to Forest Hill , as a beneficiary on such bonds. E . Fort Worth understands that the Project may require the acquisition of rights-of- way and hereby agrees that County may acquire rights-of-way located within Fort Worth 's incorporated limits for the Project and agrees that it will accept conveyance of the rights-of-way from County upon completion of the Project, if not conveyed sooner. F . Fort Worth hereby agrees that Forest Hill may make the improvements to Wichita Street within Fort Worth's incorporated limits, including on any rights-of-way acquired by County for said purposes. Page 3 lnterlocal Cooperation Agreement for Wichita Street Project TMI33 160 G. Upon the completion of the Project, Fort Worth will be gi ven such plans, drawing s, material s, and other documents as are applicable to the portion of the Project located with Fort Worth 's incorporated limits . Section 2. Representatives. Each Party will designate in writing to the other Party a representative to represent the respective Party in connection with and regarding this Agreement. A s of the Effective Date , for Forest Hill , that person is the Interim City Manager Venus Wehl e, or her designee and for the City of Fort Worth, that person is Assistant City Manager William Johnson or hi s designee. These designations may be changed at any time by the re spective Party by providing notice to the other Party . Section 3. Payment. Forest Hill's obligation to pay all amounts due to Contractor is subject to the following: A. Project Cost Participation. The parties acknowledge that the financial contributions by the Parties and the County toward the Project Costs are as follows: (1) $11 ,100,000.00 by the County for construction costs included in the Project Costs (the "County Contribution"). County Contribution does not include up to $700 ,000.00 that County will pay for right-of-way acquisition to be conducted by County; (2) $2 ,390 ,000.00 by Forest Hill for the construction costs included in the Project Costs ; and (3) $500,000.00 by Fort Worth, to be applied to the construction costs portion of the Project Costs (the "Fort Worth Contribution"). B. Process for Paying Participation Amounts. Forest Hill shall be responsible for directly making payments to the Contractor pursuant to its contract with Contractor. Forest Hill shall also be solely responsible for taking all action necessary for obtaining from County the County Contribution. Fort Worth will deliver to Forest Hill the Fort Worth Contribution in four equal installments of$125 ,000.00 each , as follows , without request for payment by Forest Hill: (1) Not later than June 1, 2023 , payment of $125 ,000.00 ; (2) Not later than October 1, 2023 , payment of $125 ,000.00 ; (3) Not later than February 1, 2024 , payment of $125 ,000.00 ; and (4) Not later than June 1, 2024 , payment of $125 ,000 .00. C. Use of Fort Worth Contribution. Forest Hill shall use the Fort Worth Contribution solely to pay the Contractor for amounts due under the contract between Forest Hill and Contractor for the Project Costs. Forest Hill shall prov ide Fort worth reasonable access to Forest Hill 's accounting records related to the Project during regular business hours with notice of not less than three (3) business days and without requiring Fort Worth to make a request for such records pursuant to the Texas Public Information Act. Page 4 lnterlocal Cooperation Agreement for Wichita Street Project TMl 33 160 D. Other Fort Worth Obligations. Fort Worth shall not unreasonably withhold or delay approval of acceptance of the work completed by the Contractor within its incorporated limits. In the event that Fort Worth rejects work relating to the Project that lies within its incorporated limits, Fort Worth shall not withhold its payment of any installment of the Fort Worth Contribution. If Fort Worth rejects work relating to the Project that lies within its incorporated limits, it agrees to provide to Forest Hill copies of any inspection reports or other documents or things on which such rejection is based, without necessity of a formal request for public information. To the extent that it rejects a portion of the work related to the Project which lies within its incorporated limits, Fort Worth shall be solely responsible for defending any claims made by the Contractor relating to rejection of such work. Section 4. Miscellaneous. A. Payment from Current Revenues. Each Party paying for the performance of the governmental functions and services described in this Agreement shall make those payments from current revenues available to the paying Party. B. Notices. Any notices or other communication required to be provided to a Party in this Agreement shall be in writing, addressed as provided hereinafter to the Party to whom the notice or other communication is given, and shall be either (i) delivered personally (hand- delivered), (ii) sent by United States certified mail, postage prepaid, return receipt requested , or (iii) placed in the custody of Federal Express Corporation or other nationally recognized carrier to be delivered overnight. Notice shall be deemed given: when received if delivered personally; 72 hours after deposit in the United States mail if sent by mail; and twenty-four (24) hours after deposit if sent by Federal Express or other nationally recognized carrier to be delivered overnight. Addresses for notices and/or other communications are as follows: To Forest Hill: City of Forest Hill 3219 E. California Pkwy Forest Hill, Texas 76119 Attn: City Manager With Copy to: Victoria W. Thomas Nichols, Jackson 500 N. Akard, Suite 1800 Dallas, Texas 75201 To Fort Worth: City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 Attn: City Manager With Copy to: Douglas W. Black Sr . Assistant City Attorney 200 Texas Street Fort Worth, Texas 76102 The addresses and persons to whose attention a notice or communication is sent may be changed by giving notice of such change in the manner herein provided for giving notice. C. Governing Law, Venue. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Texas, without regard to choice of laws rules of any jurisdiction. Any and all suits, actions or legal proceedings between Page 5 lnterlocal Cooperation Agreement for Wichita Street Project TMl33160 the Parties relating to this Agreement shall be maintained in the state courts of Tarrant County, Texas , which courts shall have exclusive jurisdiction for such purpose. D. Responsibility. To the extent allowed by law, and without waiving any immunity (governmental or otherwise) available to the Parties under Texas law, or any other defenses the Parties are able to assert under Texas law, each Party agrees to be responsible for its own negligent or intentional acts or omissions in the course of performance of this Agreement. E. No Waiver of Immunity. Notwithstanding any other provision of this Agreement, nothing in this Agreement shall or may be deemed to be, or shall or may be construed to be, a waiver or relinquishment of any immunity, defense , or tort limitation to which the Parties, their officials, officers, employees, representatives , and agents are or may be entitled, including, without limitation, any waiver of immunity to suit. By entering into this Agreement, the Parties do not create any obligations, express or implied, other than those set forth herein, and this Agreement shall not create any rights in any persons or entities who are not parties to this Agreement. F. Relationship. It is understood and agreed that the relationship between the Parties described in this Agreement is contractual in nature between independent Parties and does not constitute, and shall not be construed, as creating a partnership or joint venture relationship between the Parties. By entering into this Agreement, the Parties do not create any obligations , express or implied, other than those set forth herein, and this Agreement shall not create any rights in any individual or entity that is not a signatory hereto G. Entire Agreement. This Agreement represents the entire agreement between the Parties with respect to the subject matter covered by this Agreement. H. Exhibits; Recitals. All exhibits, if any, to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. The above and foregoing recitals to this Agreement are incorporated into and made a part of this Agreement for all purposes. I. Amendment. This Agreement may be only be amended by the mutual written agreement of the Parties. J. Headings ; "Includes. " The section and subsection headings contained herein are for convenience only and shall not be used in interpretation of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. For purposes of this Agreement, "includes" and "including" are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded. K. Severability. The sections, subsection, and all provisions and portions of this Agreement are severable, and if any section, subsection, or other provision or portion hereof is held by a court of competent jurisdiction to be illegal, invalid or unenforceable under present or future laws , such section, subsection, or other provision or portion shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable sections , subsection, or other provision or portion is not a part hereof, and the remaining sections, subsections, and other provisions and portions hereof shall remain in full force and effect. Page 6 lnterlocal Cooperation Agreement for Wichita Street Project TMl33160 L. Assignment. No Party may assign, transfer, or otherwise convey this Agreement, or any ofits rights, duties , or obligations hereunder, without the prior written consent of the other Parties. M. Force Majeure. No Party shall be liable to the other Parties for any failure, delay , or interruption in the performance of any of the terms, covenants, or conditions of this Agreement due to causes beyond the Party's respective control or because of applicable law, including, but not limited to , war, nuclear disaster, strikes , boycotts, labor disputes , embargoes , acts of God , acts of the public enemy, acts of superior governmental authority, floods , riots , rebellion, sabotage , terrorism, or any other circumstance for which a Party is not legally responsible or which is not reasonably within its power to control. The affected Party's obligation shall be suspended during the continuance of the inability then claimed, but for no longer period . To the extent possible, the Party shall endeavor to remove or overcome the inability claimed with reasonable dispatch. N. Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts , each of which shall be deemed an original and constitute one and the same instrument. The Agreement may be signed via digital/electronic means . 0. Authorized Signatories. The person signing this Agreement on behalf of each Party has been properl y authorized to sign this Agreement for that Party. P. Effective Date. This Agreement shall be effective on the date when it has been signed by the authorized representatives of all of the Parties ("the Effective Date"). (Signatures on Following Pages) Page 7 lnterlocal Cooperation Agreement for Wichita Street Project TM1 331 60 City of Fort Worth Signature Page SIGNED AND AGREED this ATTEST: APPROVED AS TO FORM: Sr. Assistant City Attorney 2K day of [ehrucu.~ , 2023 . CITY OF FORT WORTH, TEXAS By:___fL_~:::::=_,~~~r..__::::-=d-~~~'J2____ William Johnson, Assist Recommended: Lauren Prieur, Interim Director Transportation and Public Works Department Contract Compliance Manager: By signing, T acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and OFFICIAi RECORD CITY SECRETARY FT. WORTH, TX ---------1 Page 8 Interlocal Cooperation Agreement for Wichita Street Project TMl33 160 City of Forest Hill Signature Page SIGNED AND AGREED this J.L~y of kb~ , 2023. Venus ~TTE ST Goodman-Morris, Asst. City Attorney Page 9 Interlocal Cooperation Agreement for Wichita Street Project TM133160