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HomeMy WebLinkAboutContract 60879Date Received: Jan 31, 2024 Time Received: 11:59 a.m. City Secretary Contract No.: 60879 FUTURE IMPROVEMENTS AGREEMENT FOR INFRASTRUCTURE IMPROVEMENTS KELLER HICKS ROAD FROM LAUREN WAY TO KATY ROAD This FUTURE IMPROVEMENTS 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 D.R. HORTON — TEXAS, LTD. ("Developer"), a Texas limited partnership, acting by and through its duly authorized representative. City and Developer are referred to herein individually as a "party" and collectively as the "parties." WHEREAS, on February 13, 2019, the City, CADG WS44, LLC ("Centurion American"), and the City of Keller, entered into a nonbinding memorandum of understanding relating to the construction of Keller Hicks Road from Lauren Way to US 377 ("MOU"); and WHEREAS, the MOU contemplated expanding the existing two-lane roadway to a three -lane undivided commercial connector within the City of Fort Worth, constructing a two-lane divided roadway with left and right turn lanes east of Katy Road, 10-foot wide shared bicycle and pedestrian paths along the north side of the roadway in Fort Worth, five-foot sidewalks within the City of Keller, a railroad preemption traffic signal, street lights, and drainage improvements ("Project"); and WHEREAS, pursuant to the MOU, it was contemplated that Centurion American would develop the northwest corner of the intersection of Keller Hicks Road and Katy Road into a single-family residential subdivision; and WHEREAS, the MOU contemplated that Centurion American would contribute a total of $424,305.00 towards construction costs, right-of-way, and material testing and inspection costs; and WHEREAS, the MOU contemplated that Centurion American would construct the segment of the Project along the frontage of its development from Lauren Way to Katy Road, excluding the planned roundabout; and WHEREAS, Developer has purchased the property from Centurion American, has constructed public infrastructure improvements for its development, and portions of the development are complete and occupied by residents; and WHEREAS, the City and Developer have negotiated an agreement for Developer's contribution towards the Project and responsibility for construction of the Project which differs from what was contemplated in the MOU; and WHEREAS, in lieu of the Developer constructing a segment of the Project (the "Improvements" which are more specifically defined herein) pursuant to a community facilities agreement, the City has agreed to construct the Improvements with Developer contributing funds towards the Project; and Future Improvements Agreement OFFICIAL RECORD Keller Hicks Road from Lauren Way to Katy Road D.R. Horton — Texas, Ltd. CITY SECRETARY Page 1 of 8 FT. WORTH, TX WHEREAS, the determination of the amount Developer pays to the City pursuant to this Agreement for construction of the Improvements is not an assessment pursuant to Chapter 313 of the Texas Transportation Code; NOW THEREFORE, in consideration of the above recitals, City and Developer, acting by and through their duly authorized representatives, hereby agree as follows: 1. Incorporation of Recitals The City and Developer agree that the foregoing recitals are true and correct, form the basis upon which the City and Developer have entered into this Agreement and are incorporated into this Agreement by reference. 2. Improvements The Improvements shall consist of approximately 1,900 linear feet of 3 lanes of Keller Hicks Road between Lauren Way and Katy Road as more specifically described in Exhibit "A" which is attached hereto and incorporated herein by reference. 3. Future Improvement Funds; Other Contributions and Financial Matters Concurrently with the execution of this Agreement, Developer has paid to the City $371,847.00, which amount represents the estimated construction costs, material testing and inspection costs for the Improvements for the portion of the Project that Developer is responsible for contributing towards ("Future Improvement Funds").. The Future Improvement Funds shall serve as the entire amount of Developer's contribution for the cost to construct the Project. The calculation of the Future Improvement Funds was made as indicated in the following table: Developer contribution per MOU $424,305 Credit for ROW dedication $52,458 Contribution Outstanding Balance -1,900 LF Keller Hicks Rd (D-9) $371,847 In addition to the payment of the Future Improvement Funds, Developer has dedicated right-of- way for the project in connection with two final plats (FP-21-168 and FP-22-173). City and Developer will negotiate a transportation impact fee credit agreement for the Future Improvement Funds and right-of-way for the Project dedicated by FP-21-168 and FP-22-173 for items eligible to receive credit pursuant to the City's Impact Fee Ordinance. City agrees to refund any excess transportation impact fees that were paid by Developer in connection with Keller Crossing, Phase 1 (FP-21-168). Developer may utilize the transportation impact fee credit agreement to off -set any transportation impact fees owed for Keller Crossing, Phase 2 (FP-22-173). 4. Future Improvements Agreement Keller Hicks Road from Lauren Way to Katy Road D.R. Horton — Texas, Ltd. Page 2 of 8 Construction of Improvements The City may construct, or cause to be constructed, the Improvements at a time convenient to the City provided that adequate public funds, including the Future Improvement Funds, for construction of the Improvements are secured. 5. Use of Future Improvement Funds By accepting the Future Improvement Funds and by execution of this Agreement, City agrees that Developer will have no further obligation to pay any amounts in addition to the Future Improvement Funds or take any further action with regard to the construction of the Project, even if: (a) the actual costs to construct the Project exceeds the costs expected by the City as of the date of this Agreement; (b) the specifications, composition, or other characteristics of the Project hereafter change for any reason; (c) a mistake has been made (mutual or unilateral) in computing the costs of the Project; or (d) the costs or scope of the Project change for any reason. No refund of any balance of the Future Improvement Funds shall be made by City to Developer. 6. Notices All notices required or permitted under this Agreement may be 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: Development Coordination Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 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 DEVELOPER: D.R. Horton — Texas, Ltd. 6751 North Freeway Fort Worth, Texas 76131 Or to such other address one party may hereafter designate by notice in writing addressed and Future Improvements Agreement Keller Hicks Road from Lauren Way to Katy Road D.R. Horton — Texas, Ltd. Page 3 of 8 mailed or delivered to the other party hereto. 7. 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. 8. 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. 9. 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. 10. Review of Counsel City and Developer, and if they so choose, their attorneys, have had the opportunity to review and comment on this Agreement; 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. 11. 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 Developer. 12. No Third -Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of the City and Developer, and any lawful assign or successor of City or Developer, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 13. Prohibition on Boycotting Israel Future Improvements Agreement Keller Hicks Road from Lauren Way to Katy Road D.R. Horton — Texas, Ltd. Page 4 of 8 Developer 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 terms "boycott Israel" and "company" have the meanings ascribed to those terms by Chapter 2271 of the Texas Government Code. To the extent that Chapter 2271 of the Government Code is applicable to this Agreement, by signing this Agreement, Developer certifies that Developer's signature provides written verification to the City that Developer: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. 14. Prohibition on Boycotting Energy Companies Developer acknowledges that in accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more, which will be paid wholly or partly from public funds of the City, with a company with 10 or more full-time employees, unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreement, Developer certifies that Developer's signature provides written verification to the City that Developer: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 15. Prohibition on Discrimination Against Firearm and Ammunition Industries Developer acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more which will be paid wholly or partly from public funds of the City, with a company (with 10 or more full-time employees) unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Developer certifies that Developer's signature provides written verification to the City that Developer: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. 16. Signature Authority The person signing this Agreement on behalf of Developer warrants that he or she has the legal authority to execute this Agreement on behalf of Developer and that such binding authority has been 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. Future Improvements Agreement Keller Hicks Road from Lauren Way to Katy Road D.R. Horton — Texas, Ltd. Page 5 of 8 17. Counterparts This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. 18. Entire Agreement This written instrument (together with any attachments, exhibits, and appendices) constitutes the entire understanding between the City and Developer, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. [SIGNATURE ON FOLLOWING PAGE] Future Improvements Agreement Keller Hicks Road from Lauren Way to Katy Road D.R. Horton — Texas, Ltd. Page 6 of 8 IN WITNESS WHEREOF, the City and Developer 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 DAYIA aLr--gHdo1cf Dana Burghdoff (Jan 3Y202411:47 CST) Dana Burghdoff Assistant City Manager Jan 31, 2024 Date Recommended by: Q -At. Dwayne Hollars (Jan 29, 202410:03 CST) Dwayne Hollars Contract Compliance Specialist Planning and Development APPROVED AS TO FORM AND LEGALITY Richard A. McCracken (Jan 30, 202421:29 CST) Richard McCracken Sr. Assistant City Attorney 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. City Secretary Name: Tyson Thompson, PE Title: Assistant Director Future Improvements Agreement Keller Hicks Road from Lauren Way to Katy Road D.R. Horton — Texas, Ltd. Page 7 of 8 DEVELOPER: D.R. HORTON — TEXAS, LTD. A Texas limited partnership By: D.R. Horton, Inc. A Delaware corporation Its authorized agent I -� �!- �- Justin Bosworth Assistant Secretary Jan 29, 2024 Date ATTEST: Jannette S. Goodall fORto�1da �o o�°s °=a pP * 000 00 *�a paa�nn�zag4a OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX EXHIBIT A Future Improvements Agreement Keller Hicks Road from Lauren Way to Katy Road D.R. Horton — Texas, Ltd. Page 8 of 8