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HomeMy WebLinkAboutContract 59693CSC No. 59693 INFRASTRUCTURE CONSTRUCTION AGREEMENT FOR BURNETT PARK This INFRASTRUCTURE CONSTRUCTION AGREEMENT ("Agreement") is made and entered into by and between The City of Fort Worth ("City"), a home -rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and the Downtown Fort Worth Initiatives, Inc. ("DFWII"), acting by and through its duly authorized representative. City and DFWII are referred to herein individually as a "party" and collectively as the "parties." WHEREAS, DFWI, a 501(c) (3) corporation, provides maintenance and operation services of Burnett Park pursuant to that certain Management Agreement, City Secretary No. 46819, between DFWII and City ("Management Agreement"); and WHEREAS, pursuant to the Management Agreement, the City will provide funding, on a reimbursement basis, to DFWII for the installation of the synthetic turf at Burnett Park ("Project"), City Project No. 104360; and WHEREAS, DFWII and the City desire to enter into this Agreement to reimburse DFWII the cost of $50,000.00 for the Project; NOW, THEREFORE, for and in consideration of these recitals and the covenants and conditions contained herein, DFWII and the City do hereby agree as follows: 1. CFA Ordinance The Community Facilities Agreements Ordinance ("CFA Ordinance"), as amended, but limited to only the specific sections listed in this paragraph, is incorporated into this Agreement by reference, as if it was fully set forth herein. In addition to the terms and conditions in this Agreement, DFWII agrees to comply with the following provisions of the CFA Ordinance (City Code, Part II, Chapter 9 httt)s:HcodelibrM.amlegal.com/codes/ftworth/latest/ftworth tx/0-0-0-62316) in the performance of DFWII's duties and obligations pursuant to this Agreement: ■ § 9-3 PURPOSE AND SCOPE ■ § 9-4 DEFINITIONS ■ § 9-403 LIMITS ON CITY PARTICIPATION ■ § 9-404 CITY'S WAGE RATES ■ ARTICLE VII: CONSTRUCTION, FINAL INSPECTION, AND CFA CLOSEOUT DFWII further agrees to cause all contractors hired by DFWII to comply with the CFA Ordinance as recited herein in connection with the work performed by the contractors. 2. Description of Improvements; Exhibits and Attachments The attached exhibits and attachments describe the nature and extent of the Improvements that are the subject of this Agreement and are attached hereto and incorporated herein by reference: City of Fort Worth, Texas Page 1 of 11 Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Under the Management Agreement, the City has an obligation to construct, maintain, repair or relocate certain public infrastructure deferred facility maintenance Project or other capital expenditures. Due to DFWII's management presence on -site, it was determined that the most efficient way to accomplish the City's obligation is to provide funding to DFWII through this Agreement so that DFWII can obtain its own contractors and oversee the work. To the extent that the Exhibits, Location Map, or the Cost Estimates conflict with the Engineering Plans, the Engineering Plans shall control. 3. Construction of Improvements DFWII agrees to cause the construction of the Project contemplated by this Agreement with construction to be completed in a good and workmanlike manner and in accordance with all City standards and specifications, the Cost Estimates provided for the Project, and this Agreement. DFWII acknowledges that City will not accept the Project until verifying that the contractors, and all subcontractors and material suppliers, have been paid in full for constructing the Project, and consent of the surety on payment and performance bonds provided for the Project. 4. City Participation The City shall reimburse DFWII in an amount not to exceed $50,000.00 for construction costs after presentation of proper documentation by DFWII to the City that the Project have been constructed and accepted by DFWII and all contractors and material suppliers have been paid. Reimbursement payments shall be made per Project and may be made in a lump sum upon completion of the specific Project. 5. Completion Deadline; Extension Periods This Agreement shall be effective on the date this Agreement is executed by the City's Assistant City Manager ("Effective Date"). DFWII shall complete construction of the Project and obtain the City's acceptance of the Improvements by March 01, 2023 ("Term"). If construction of the Project has not been completed at the end of the Term, the DFWII may request that this Agreement be extended for an additional period of time ("Extension Period"). All Extension Periods shall be agreed to in writing by the City and the DFWII as set forth in a written amendment to this Agreement. In no event shall the Term of this Agreement plus any Extension Periods be for more than three years. 6. Failure to Construct the Improvements (a) The City may utilize the DFWII's Financial Guarantee, if any, or the funding set aside for this Agreement, to cause the completion of the construction of the Project if at the end of the Term, and any Extension Periods, the Project have not been completed and accepted by the City. If the Project are not completed at the end of the Term, and any Extension Periods, there will be no further obligation for City Participation to be paid to the DFWII. (b) The City may utilize the DFWII's Financial Guarantee to cause the completion of the construction of the Project or to cause the payment of costs for construction of the Project before the expiration City of Fort Worth, Texas Page 2 of 11 Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 of the Term, and any Extension Period, if the DFWII breaches this Agreement, becomes insolvent, or fails to pay costs of construction. (c) Nothing contained herein is intended to limit the DFWII's obligations under the CFA Ordinance, this Agreement, the Financial Guarantee, DFWII's agreements with DFWII's contractors, or other related agreements. 7. Termination If DFWII desires to terminate this Agreement before DFWII's contractors begin constructing the Project, DFWII agrees to the following: (a) that DFWII and City must execute a termination of this Agreement in writing; (b) to pay to the City all costs incurred by the City in connection with this Agreement, including time spent by the City's inspectors at preconstruction meetings. 8. Award of Construction Contracts (a) DFWII will award all contracts for the construction of the Project and cause the Project to be constructed in accordance with the CFA Ordinance. (b) DFWII will employ construction contractors who meet the requirements of the City to construct the Project including, but not limited, to being prequalified, insured, licensed and bonded to construct the Project in the City. (c) DFWII will require DFWII's contractors to provide the City with insurance equal to or in excess of the amounts required by the City's standard specifications and contract documents for DFWII- awarded infrastructure construction contracts. The City must be named as an additional insured on all insurance policies. The DFWII must provide the City with a Certificate of Insurance (ACORD or form approved by the State of Texas), supplied by each contractor's insurance provider, which shall be made a part of the Project Manual. (d) DFWII will not allow DFWII's contractors to begin construction of the Project until a notice to proceed to construction is issued by the City. (e) DFWII will not allow DFWII's contractors to connect buildings to service lines of sewer and water mains constructed pursuant to this Agreement, if any, until said sewer, water mains and service lines have been completed to the satisfaction of the City. (fl DFWII shall ensure the contractors are paid the City's wage rates in effect during construction of the Project. City of Fort Worth, Texas Page 3 of 11 Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 9. Utilities DFWII shall cause the installation or adjustment of utilities required to: (1) serve the Project; and (2) to construct the Improvements required herein, notwithstanding public utilities which are the responsibility of the City as required and defined in the Management Agreement. 10. Easements and Rights -of -Way DFWII agrees to provide, at its expense, all necessary rights -of -way and easements, if any are required for the construction of the Project provided for by this Agreement, and any easements acquired shall be dedicated to the City. 11. Liability and Indemnification (a) DFWII HEREBY RELEASES AND AGREES TO INDEMNIFY, DEFEND AND HOLD THE CITY HARMLESS FOR ANY INADEQUACIES IN THE PRELIMINARY PLANS, SPECIFICATIONS, ENGINEERING PLANS, AND COST ESTIMATES SUPPLIED BY THE DFWII FOR THIS AGREEMENT. (b) THE DFWIICOVENANTSANDAGREES TO, AND BYTHESE PRESENTSDOESHEREBY FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM ALL SUITS, ACTIONS OR CLAIMS OF ANY CHARACTER, WHETHER REAL OR ASSERTED, BROUGHT FOR OR ONACCOUNT OF ANYINJURIES OR DAMAGES SUSTAINED BYANYPERSONS, INCL UDING DEATH, OR TO ANY PROPERTY, RESULTING FROM OR IN CONNECTION WITH THE CONSTRUCTION, DESIGN, PERFORMANCE OR COMPLETION OF ANY WORK TO BE PERFORMED BY SAID DFWII, ITS CONTRACTORS, SUBCONTRACTORS, OFFICERS, AGENTS OR EMPLOYEES, OR IN CONSEQUENCE OF ANY FAILURE TO PROPERLY SAFEGUARD THE WORK, OR ON ACCOUNT OF ANY ACT, INTENTIONAL OR OTHERWISE, NEGLECT OR MISCONDUCT OFSAID DFWII, ITS CONTRACTORS, SUB- CONTRACTORS, OFFICERS, AGENTS OR EMPLOYEES, WHETHER OR NOT SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE CITY OF FORT WORTH, ITS OFFICERS, SERVANTS, OR EMPLOYEES. (c) DFWII WILL REQUIRE ITS CONTRACTORS TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, SUITS OR CAUSES OF ACTION OF ANY NATURE WHATSOEVER, WHETHER REAL OR ASSERTED, BROUGHT FOR OR ONACCOUNT OFANYINJURIES OR DAMAGES TO PERSONS OR PROPERTY, INCL UDING DEATH, RESULTING FROM, OR IN ANY WAY CONNECTED WITH, THE CONSTRUCTION OF THE PROJECT CONTEMPLATED HEREIN, WHETHER OR NOT SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE CITY OF FORT WORTH, ITS OFFICERS, SERVANTS, OR EMPLOYEES. FURTHER, DFWII WILL REQUIRE ITS CONTRACTORS TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE CITY FOR ANY LOSSES, DAMAGES, COSTS OR EXPENSES SUFFERED BY THE CITY OR CAUSED ASA RESULT City of Fort Worth, Texas Page 4 of 11 Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 OF SAID CONTRACTORS' FAILURE TO COMPLETE THE WORK AND CONSTRUCT THE PROJECT INA GOOD AND WORKMANLIKE MANNER, FREE FROM DEFECTS, IN CONFORMANCE WITH THE CFA ORDINANCE, AND IN ACCORDANCE WITH ALL PLANS AND SPECIFICATIONS. 12. Right to Enforce Contracts Upon completion of all work associated with the construction of the Improvements, DFWII will assign to the City a non-exclusive right to enforce the contracts entered into by DFWII with its contractors, along with an assignment of all warranties given by the contractors, whether express or implied. Further, DFWII agrees that all contracts with any contractor shall include provisions granting to the City the right to enforce such contracts as an express intended third -party beneficiary of such contracts. 13. Notices All notices required or permitted under this Agreement may be transmitted informally via electronic means and if required to be formally delivered, given to a party by hand -delivery or by mail, addressed to such party at the address stated below. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: CITY: Park & Recreation Department City of Fort Worth 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 With conies to: City Attorney's Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 and City Manager's Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 MA12j" Downtown Fort Worth, Inc. 777 Taylor Street, Suite 100 Fort Worth, TX 76102 Or to such other address one party may hereafter designate by notice in writing addressed and mailed or delivered to the other party hereto. City of Fort Worth, Texas Page 5 of 11 Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 14. Right to Audit DFWII agrees that, until the expiration of three (3) years after acceptance by the City of the Project constructed pursuant to this Agreement, that the City shall have access to and the right to examine any directly pertinent books, documents, papers and records of the DFWII involving transactions relating to this Agreement. DFWII agrees that the City shall have access during normal working hours to all necessary DFWII facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give DFWII reasonable advance notice of intended audits. DFWII further agrees to include in all contracts with DFWII's contractors for the Project a provision to the effect that the contractor agrees that the City shall, until the expiration of three (3) years after final payment under the contract, have access to and the right to examine any directly pertinent books, documents, papers and records of such contractor, involving transactions to the contract, and further, that City shall have access during normal working hours to all of the contractor's facilities, and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City shall give DFWII's contractors reasonable advance notice of intended audits. 15. Independent Contractor It is expressly understood and agreed that DFWII and its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers shall operate as independent contractors as to all rights and privileges and work performed under this Agreement, and not as agents, representatives or employees of the City. Subject to and in accordance with the conditions and provisions of this Agreement, DFWII shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. DFWII acknowledges that the doctrine of respondeat superior shall not apply as between the City and its officers, representatives, agents, servants and employees, and DFWII and its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. DFWII further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and DFWII. It is further understood that the City shall in no way be considered a co -employer or a joint employer of DFWII or any employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers of DFWII. Neither DFWII, nor any officers, agents, servants, employees or subcontractors of DFWII shall be entitled to any employment benefits from the City. DFWII shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. The City, through its authorized representatives and employees, shall have the sole and exclusive right to exercise jurisdiction and control over City employees. 16. Applicable Law; Venue This Agreement shall be construed under and in accordance with Texas law. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. City of Fort Worth, Texas Page 6 of 11 Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 17. Non -Waiver The failure of the City to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's right to assert or rely on any such term or right on any future occasion. 18. Governmental Powers and Immunities. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 19. Headings The paragraph headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 20. Severability In the event that any clause or provision of this Agreement shall be held to be invalid by any court of competent jurisdiction, the invalidity of such clause or provision shall not affect any of the remaining provisions hereof. 21. Review of Counsel City and DFWII, and if they so choose, their attorneys, have had the opportunity to review and comment on this document; therefore any rule of contract construction or interpretation that would normally call for the document to be interpreted as against the drafting party shall not apply in interpretation of this Agreement, and each section, portion, and provision of this Agreement shall be construed solely on the basis of the language contained therein, regardless of who authored such language. 22. Prohibition on Boycotting Israel DFWII acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a company with 10 or more full-time employees that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City 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 term "boycott Israel" has the meaning ascribed to it by Section 808.001 of the Texas Government Code. The term "company" has the meaning ascribed to it by Section 2271.001 of the Texas Government Code. To the extent that Chapter 2271 of the Government Code is applicable to this Agreement, by signing this Agreement, DFWII certifies that DFWII's signature provides written verification to the City that DFWII: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. City of Fort Worth, Texas Page 7 of 11 Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 23. Immigration and Nationality Act DFWII shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, DFWII shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. DFWII shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any DFWII employee who is not legally eligible to perform such services. DFWII SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY DFWII, DFWH S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to DFWII, shall have the right to immediately terminate this Agreement for violations of this provision by DFWII. 24. Amendment No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the City and DFWII. 25. Assignment and Successors DFWII shall not assign or subcontract all or any part of its rights, privileges, or duties under this Agreement without the prior written consent of City. Any attempted assignment or subcontract without the City's prior written approval shall be void and constitute a breach of this Agreement. 26. No Third -Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of the City and DFWII, and any lawful assign or successor of DFWII, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 27. Compliance with Laws, Ordinances, Rules and Regulations DFWII, its officers, agents, servants, employees, and contractors, shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the attention of DFWII any such violation on the part of DFWII or any of its officers, agents, servants, employees, or subcontractors, then DFWII shall immediately desist from and correct such violation. 28. Signature Authority The person signing this Agreement on behalf of DFWII warrants that he or she has the legal authority to execute this Agreement on behalf of the DFWII, and that such binding authority has been City of Fort Worth, Texas Page 8 of 11 Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 granted by proper order, resolution, ordinance or other authorization of the entity. The City is fully entitled to rely on this warranty and representation in entering into this Agreement. 29. Counterparts This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. 30. Entire Agreement This written instrument, together with any attachments, exhibits, and appendices, constitutes the entire understanding between the City and DFWII concerning the work to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. 31. Fiscal Funding Limitation In the event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable by any means whatsoever in any fiscal period for payments due under this Agreement, then the City will immediately notify DFWII of such occurrence and this Agreement shall be terminated on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except to the portions of annual payments herein agreed upon for which funds shall have been appropriated. [REMAINDER OF PAGE INTENTIONALLY BLANK] City of Fort Worth, Texas Page 9 of 11 Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 IN WITNESS WHEREOF, the City and DFWII have each executed this Agreement by their duly authorized signatories to be effective on the date executed by the City's Assistant City Manager. CITY OF FORT WORTH a*� Jesica McEachern Assistant City Manager Date: J u n 30, 2023 Recommended by: AgLe fa-, Dave Lewis Acting Director, Park & Recreation Department Approved as to Form & Legality: a4 AV4 Jeremy Anato-Mensah Assistant City Attorney I M&C No. None Date: None Form 1295: None ATTEST: Jannette P. Goodall City Secretary 4 04� anu pP� fORt�'9•Ido Od �o °a�°s osd p0a� o po 1�dd Oaau��°.E°X6A°5q o DOWNTOWN FORT WORTH INITIATIVES, INC. By: Andy Taft , 202311:05 CDT) Name: Andrew Taft Title: President Date: Jun 9, 2023 sSP 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. Name: Jing Yang Title: Landscape Architect Manager OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX City of Fort Worth, Texas Page 10 of 11 Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 The following attachments are incorporated into this Agreement. To the extent a conflict exists between the main body of this Agreement and the following attachments, the language in the main body of this Agreement shall be controlling. Included Attachment ❑ Attachment A - Location Map _ -- ON VAA -- -, OURGM TOWFR c 01 City of Fort Worth, Texas Infrastructure Construction Agreement with City for Burnett Park Rev. 05/26/23 Page 11 of 11