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HomeMy WebLinkAboutContract 30701 CITY SECRETARY'`- CONTRACT NO. ENHANCED COMMUNITY FACILITIES AGREEMENT THE STATE OF TEXAS § COUNTY OF TARRANT § WHEREAS, Wide Open Spaces, Ltd, a Texas limited partnership, hereinafter called"Developer", desires to make certain improvements to Trinity Bluff,an addition to the City of Fort Worth,Texas; and WHEREAS, the said Developer has requested the City of Fort Worth,a municipal corporation of Tarrant and Denton Counties,Texas, hereinafter called "City", to do certain work in connection with said improvements. NOW, THEREFORE, KNOW ALL BY THESE PRESENTS: That said Developer, acting herein by and through Struhs Development Corporation, a Texas corporation that is the general partner of Developer,which is acting herein by and through Tom L. Struhs, its duly authorized President, and the City, acting herein by and through Marc Ott, its duly authorized Assistant City Manager, for and in consideration of the covenants and conditions contained herein, do hereby agree as follows: I. General Requirements A. The Policy for the Installation of Community Facilities ("Policy") dated March 2001, approved by the City Council of the City of Fort Worth, is hereby incorporated into this Enhanced Community Facilities Agreement as if copy herein verbatim. Developer agrees to comply with all provisions of said Policy in the performance of its duties and obligations hereunder. B. The requirements of the Policy shall govern this Enhanced Community Facilities Agreement, provided, however, that any conflict between the terms of this Enhanced Community Facilities Agreement and the Policy shall be resolved in favor of this Agreement. C. Developer shall provide a letter of credit ("Original Letter of Credit") in the amount of $2,317,950 in conformance with paragraph 6, Section II.B.l.d of the Policy, such amount representing 125% of the total estimated cost of the community facilities. The additional 25% shall be considered to be the Developer's Change Order Fund. The issuing bank shall meet the requirements of paragraph 6, Section 11, of the Policy. Developer must renew the Original Letter of Credit at least thirty days before its expiration. The Original Letter of Credit must provide that the City may draw upon the letter of credit if Developer fails to renew the letter of credit at least thirty days before the expiration date of the letter of credit. 1. Notwithstanding any contrary provision in this Agreement, Developer shall have the right to periodically (not more than one time per month) reduce the amount of the Original Letter of Credit, upon satisfaction of the following conditions: COMMUNITY FACILITIES AGREEMENT WISE OPEN SPACES LTD.—TRINITY BLUFF IT Page I of 8 .......... (a) Developer shall provide the City with written notice (the "Reduction Letter") that Developer desires to reduce the amount of the Original Letter of Credit; and (b) The balance of the Original Letter of Credit including the Change Order Fund after reduction is at least equal to the estimated value of the community facilities then remaining to be completed (such remaining value is hereinafter called the "Estimated Cost to Complete"). 2. The Reduction Letter shall be delivered to the Development Coordinator of the Department of Transportation and Public Works for street and storm drainage facilities or to the Development Coordinator of the Water Department for water and sanitary sewer facilities(the "Development Coordinators'). 3. The Reduction Letter shall include a copy of the city inspector's partial pay estimate for the amount to be reduced, together with Waivers of Liens executed by the Developer's contractor(s). Either or both, as the case may be, of the Development Coordinators shall have fourteen (14) calendar days after receipt of the Reduction Letter to notify Developer and the bank issuing the Original Letter of Credit ("Bank") in writing of any objection to the amount of reduction requested, provided, however, that in the event that the Development Coordinator disagrees with only a portion of the reduction, the remainder shall be deemed approved and only that portion as to which a disagreement exists shall not be subject to reduction. To the extent that the Development Coordinator does not object, in writing, to any or all of the amount set forth in the Reduction Letter, the amount by which the Original Letter of Credit may be reduced shall be equal to the Reduction Letter (such amount being called the "Reduction Notice"). Following the four-teen calendar day period described above and upon the Bank's receipt of the Reduction Notice, Bank shall be authorized to reduce the Original Letter of Credit by such approved amount without delay. 4. In the event that the Community Facilities have not been completed within 22 months following the date hereof, Developer may request that this CFA be extended for one additional year and, contemporaneously with the request to extend, provide City with a new letter of credit in the amount of cost to complete the community facilities as shown on the city inspector's partial pay estimates, plus 25%. Failure to make a request to extend or failure to provide this Letter of Credit shall entitle City to draw upon the balance of the Original Letter of Credit. D. The Developer shall award all contracts for the construction of community facilities in accordance with Chapter 252,Texas Local Government Code,as amended. E. The contracts for the construction of the public infrastructure shall be administered in conformance with paragraph 8, Section H, of the Policy. F. The Developer further covenants and agrees to, and by these presents does hereby, 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 on account of any injuries or damages sustained bL—gTy—,,. COMMUNITY FACILITIES AGREEMENT 7 WISE OPEN SPACES LTD.—TRINITY BLUFF Page 2 of8 persons (including 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 Developer, his 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 of said DEVELOPER, his contractors, sub-contractors, officers, agents or employees, whether or not such injuries, death or damaze are caused, in whole or in part, by the alle-ged n Wli gence of the City of Fort Worth, its officers, servants, or emplovemThe City and any of its authorized designees agree to fully comply with the Owner's or its' designees requests by following all safety and job requirements then in effect on the Development. G. Developer shall install or adjust all of the required utilities to serve the development or to construct the improvements required herein. H. Developer agrees that no lot shall be occupied under a certificate of occupancy until the improvements required herein have been constructed (Article 104.100, Ordinance 7234). 1. Developer hereby releases and agrees to indemnify and hold the City harmless for any inadequacies in the preliminary plans, specifications and cost estimates supplied by the Developer for this contract, J. Developer agrees to provide, at its expense, all necessary rights of way and easements across property owned by Developer required to construct current and future improvements provided for in this agreement. K. Developer agrees to construct proposed improvements as shown on the exhibits attached hereto. The following exhibits are made a part hereof. Exhibit A Water Facilities Exhibit A-1 Sanitary Sewer Facilities Exhibit B Paving L. City participation shall be due and payable at those times described in HLC below and shall be based upon the actual cost of the Community Facilities as shown in competitive bids taken pursuant to Chapter 252,Texas Local Government Code, as amended. A Prior to completion and acceptance by the City of the Community Facilities and prior to the dedication of the easements within which the Community Facilities will be constructed, but subject to obtaining any necessary approvals of the Department of Transportation and Public Works and the Water Department, Developer may apply for and receive "foundation only permits" in order to conduct grading and foundation work within the development. Other building permits for any buildings to be constructed within the development shall be issued when, as, and if the Community Facilities have been completed and accepted by the City and the easements within which the Community Facilities are constructed have been dedicated to the City either by platting or by separate instrument necessary to serve such buildings or other structures. q COMMUNITY FACILITIES AGREEMENT WISE OPEN SPACES LTD.—TRINITY BLUFF Page 3 o1`8 A H. Water and Sewer Facilities All amounts referenced in this Section 11 refer to the cost to Developer to cause construction of the infrastructure outlined in this Agreement pursuant to a contract between Developer and a third party contractor (the 'Third Party Contract") that is let in accordance with Chapter 252 of the Texas Local Government Code, as required by Section I,D of this Agreement (the "Third Party Contract Costs"). All other costs incurred by Developer that are related to the infrastructure outlined in this Agreement but that are not Third Party Contract Costs, including, without limitation, engineering and other professional fees, are in addition to the Third Party Contract Costs referenced in this Section 11 and are not subject to reimbursement by the City pursuant to this Agreement. A. WATER FACILTIES: Developer shall install the proposed water line(s), fire line(s) and/or meters as shown on Exhibit A, the estimated cost of which is $1,216,398. The City agrees to record the location of each said service line in respect to the comer of the lot served, and to retain said records in its possession. The Developer and the City shall share in the cost of the water improvements as follows: Maximum Economic Maximum Water Maximum Development Cost Department Cost Water Cost Water 6" thru 12" $ -0- $ 344,758 $ 344,758 24"Water Cost $ -0- $ 404,424 $ 404,424 Pavement over water $ 187,036 $ 249,508 $ 436,544 Service(not including $ 30,672 $ -0- $ 30,672 meters) Engineering $ -0- $ -0- $ -0- Sub-Totals, Water $ 217,708 $ 998,690 $ 1,216,398 B. SANITARY SEWER FACILITIES: Developer shall install sanitary mains as shown on Exhibit A-1, the estimated cost of which is $601,602. The City agrees to record the location of each said service line in respect to the comer of the lot served, and to retain said records in its possession. The Developer, subject to the right of reimbursement, shall bear the cost of the sewer improvements as follows: COMMUNITY FACILITIES AGREEMENT WISE OPEN SPACES LTD.—TRINITY BLUFF Page 4 of 8 Maximum Economic Maximum Water Maximum Development Cost Department Cost Sewer Cost Mains within $ 16,935 148,123 $ 165,058 Development Approach_ $ $ -0- Easements* -0- $ -0- $ -0- Service $ -0- $ -6--- $ -0- Paving over $ 187,036 $ 249,508 $ 436,544 sewer Sub-Total Sewer $ 203,971 $ 397,631 $ 601,602 *Easements to be dedicated by Developer at no cost to City Recapitulation of Water/Sewer Maximum Cost Maximum Economic Maximum Water Maximum Development Cost Department Cost Total Cost Total of Water $ 421,679 $ 1,396,321 $ 1,818,000 and Sewer Construction Construction $ 8,434 $ 27,926 $ 36,360 Inspection Grand Total $ 430,113 $ 1,424,247 $ 1,854,360 Ill. MISCELLANEOUS PROVISIONS A. PAVING: The City agrees to pay for the reconstruction of the following existing streets with concrete paving at S28/sq yd., up to $499,016 (17,822 Sq Yd x $28/Sq Yd), excluding curb and gutter, valley gutter, and sidewalk: Bluff, Samuels, Gounah, Peach, Pecan, and Elm. The Developer shall be responsible for all costs in excess of$28 per square yard for reconstruction of such streets. B. IMPACT FEES AND CREDIT: The Developer shall receive water and wastewater impact fee credits for each meter removed or replaced in the development. The amount of each such water and wastewater impact fee credit shall be equal to the amount that would be charged as an impact fee for a meter of the same size as that being removed or replaced according to the then current Water and Wastewater Impact Fee Collection Schedule as of the date Developer makes application for such credit. The Developer may apply any impact fee credits available throughout the development to any phase of the development even if the meter for which credit is being given is in another phase of the development. .......... COMMUNITY FACILITIES AGREEMENT WISE OPEN SPACES LTD.—TRINITY BLUFF Page 5 0f8 C. PAYMENT OF CITY PARTICIPATION 1. City participation in the column designated as Maximum Economic Development Cost of the chart headed "Recapitulation of Water/Sewer Maximum Cost" at the end of Section ILB shall be the lesser of(i) $430,113 or (ii) the actual Third Party Contract Costs expended by Developer for construction of the infrastructure in such column, which Reimbursement Amount shall be subject to reduction pursuant to and in accordance with Section III.C.4 of this Agreement (the "Reimbursement Amount"). The Reimbursement Amount shall be due and payable to the Developer upon (i) the completion of the public infrastructure contemplated by this Agreement, (ii) the attainment of all milestones and obligations required as a condition for such payment pursuant to and in accordance with Section 5.9 of the EDPA (which provision shall control in the event of any conflict between such provision and the terms and conditions of this Enhanced Community Facilities Agreement), and (iii) completion in accordance with the EDPA of all Required Improvements, as defined in Section 4.1 of the EDPA. 2. City participation in the column designated as Maximum Water Department Cost shall become due and payable to the Developer as each phase of construction is completed and accepted by the City. 3. Developer hereby agrees that at least twenty percent (20%) of all Third Party Contract Costs (i.e. those costs in the column designated Maximum Total Cost of the chart headed "Recapitulation of Water/Sewer Maximum Cost" at the end of Section ILB) expended by Developer for construction of the infrastructure outlined in this Agreement, including any costs and fees of subcontractors retained to undertake work covered by the Third Party Contract, shall be expended with Fort Worth Certified M/WBE Companies (the "M/WBE Construction Commitment"). For purposes of this Agreement, a "Fort Worth Certified M/WBE Company" means a minority- or woman-owned business that has a principal office located within the corporate limits of the City of Fort Worth and has received certification as either a minority business enterprise or woman business enterprise by the North Texas Central Regional Certification Agency (NCTRCA) or the Texas Department of Transportation (TxDOT), Highway Division. Developer shall file a plan for use of Fort Worth Certified M/WBE Companies in the construction of the infrastructure outlined in this Agreement and related monthly spending reports with Fort Worth Certified M/WBE Companies pursuant to the procedures set forth in Sections 4.5.1 and 4.5.2 of the EDPA. Developer's compliance with this M/WBE Construction Commitment shall be measured pursuant to the final construction spending report that Developer is required to submit to the City pursuant to Section 4.5.3 of the EDPA. 4. Notwithstanding anything to the contrary herein, if the M/WBE Construction Commitment is not met, the Reimbursement Amount shall be reduced by the percentage by which the M/WBE Construction Commitment was not met, which reduction shall be calculated by subtracting from 100% an amount, to be expressed as a percentage,equal to a fraction whose numerator is the Third Party Contract Costs actually expended with Fort Worth Certified M/WBE Companies and whose denominator is the M/WBE Construction Commitment. For example, if the Third Party Contract Costs are $1,854,360 as projected herein, then the NVVvrBE Construction Commitment would be $370,872. If, however, only $296,697.60 in Third Party Contract Costs were expended with Fort Worth Certified M/WBE Companies, then the Reimbursement Amount would be reduced as follows: 100% - [296,697.60/370,872], or 100% - 80%, or 20%. Therefore, if the actual Third Party Contract Costs expended by Developer for construction of the inf] Z""7", COMMUNITY FACILITIES AGREEMENT WISE OPEN SPACES LTD.—TRINITY BLUFF Page 6 of 8 ........... column designated as Maximum Economic Development Cost of the chart headed "Recapitulation of Water/Sewer Maximum Cost" at the end of Section 11.13 is the maximum of $430,113, then in this example, it would be reduced by twenty percent (20%), meaning that the Reimbursement Amount would only be $344,090.40. D. MAXIMUM PARTICIPATION The amounts set forth above constitute the maximum amounts of City participation. Developer shall be responsible for costs in excess of these maximum amounts. E. FRANCHISE UTILITIES The City is a party to certain Franchise Agreements between the City and the utilities providing service to the development("Franchise Providers"). To the extent that the City does not have an existing franchise agreement with a utility providing services, it does have the power granted to it by the Texas Utilities Code and the Texas Local Government Code (collectively, the "Acts") and its Ordinances governing the City's ability to manage the use of the public's rights-of-way ("Ordinances"), In course of providing and constructing the Community Facilities, the Developer will be engaged in street straightening and widening within the development. This action will necessitate the relocation of certain utilities. It is hereby agreed that the City will exercise all of its rights, duties and obligations with regards to the Franchise Agreements, the Acts and the Ordinances to provide for the proper allocation of the costs associated with any relocations of utilities, to provide for the timely completion of the contemplated improvements and to minimize the impact on the citizens and businesses in the development. Provided, however, City shall never have any liability to Developer for the failure of any Franchise Providers or any other utility to relocate their facilities, Further, City shall never be responsible for any costs incurred by the Franchise Providers, other utilities or Developer in relocating any facilities. IN TESTIMONY WHEREOF, the City of Fort Worth has caused this instrument to be executed in quadruplicate in its name and on its behalf by its Assistant City Manager, attested by its City Secretary, with the corporate sea] of the City affixed, and saideveloper has executed this instrument in quadruplicate, at Fort Worth,Texas this the day of ;004. COMMUNITY FACILITIES AGREEMENT WISE OPEN SPACES LTD.—TRINITY BLUFF Page 7 of 8 ATTEST: CITY ORTH Marty Hendrix Marc A. Ott City Secretary Assistant City Manager Approval Recommended Approved as to Form and Legality Frank Crumb, P. E., Director AssMht City Attorney Fort Worth Water Department ATTEST: DEVELOPER: Wide Open Spaces Ltd.,a Texas Limited Partnership Secretary By: Struhs Development Corporation, Texas Corporation, its General Partner Tom L.'gtndis,President ---------- contracs: AuthoriatioX Date COMMUNITY FACILITIES AGREEMENT WISE OPEN SPACES LTD.—TRINITY BLUFF Page 8 Of8 IM 4 �w �wo�wx.w.ww �,.mm'aw.www�w.m i zw < LD V vyi J W 0)", La ig ry�gg6 ^M^ -h- 44" 44 14' d t� 41 Pi H Gt a z a w a w C4 z PIONEER REST CFMETARYRY V �.ww. 4 - b 'ZI pry. ,gyp "map �d'tP p . A o �... z n H N p b rl�u ----- U r a r r l� T� r m a hal y W m a w City of Fort Worth, Texas Mayor and Council Communication INSOMMENERM01 isivmrmu� of imi urumrmmrmmm COUNCIL ACTION: Approved As Amended on 8/17/2004 - (amendment attached) burceurt�� ummomarwwouNummrvidmamwurdwwuuuisonro¢+iwonrmrva+rm amuwnnn^naawwum ��ummmummmmmuououoioumuuuuuuummuuumm wmmummuw��uuuuuuummmmmu uwu DATE: Tuesday, August 17, 2004 LOG NAME: 17TR BLUFF CFA REFERENCE NO.: C-20217 SUBJECT: Approval of an Enhanced Community Facilities Agreement with Wide Open Spaces, Ltd. for Construction of Water and Sewer Facilities to Serve the Trinity Bluff District, Encompassing a Multifamily Development Northeast of Downtown and Surrounding Area mu oumimmwummuuu�uiHuuumumm oiwou�ummu�m��uuuui muuwwwuuwuu�uuwwuwwiwuioi�muwwwwor wwwm umimm�Mu�oMmouoioimwwuw RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an Enhanced Community Facilities Agreement in the amount up to $1,854,360 with Wide Open Spaces, Ltd. (the Developer), for the installation of community facilities to serve the Trinity Bluff development. DISCUSSION: City Council is being requested to approve an M&C that authorizes the execution of an Economic Development Program Agreement (EDPA) with Wide Open Spaces, Ltd. Pursuant to the EDPA, the City will contribute up to $1,854,360 for community facilities toward this project. A portion of the City's participation is considered enhanced community facility participation in the amount not to exceed $430,113, for the following: Pavement over water facilities and certain water services (not including service lines and meters); Pavement over sewer facilities and certain sanitary sewer mains; and Construction inspection fees related to these improvements. The City wil reimburse the Developer for these facilities upon (i) the completion of the public infrastructure contemplated under this Agreement, (ii) the Developer complying with its obligations contained in paragraph 4.1 of the EDPA, and (iii) completing the required improvements outlined in Section 4 of the EDPA. The remaining portion of the City's participation, not to exceed $1,424,247, is part of the City's standard participation for water and sanitary sewer facilities central city areas. The facilities to be installed under the standard participation policy is as follows: Water lines of 6" through 12" and 24", excluding service lines and meters; Pavement over the water lines; Sewer mains within the development, excluding service lines; Paving over the sewer mains; and, A portion of construction inspection fees. The Developer shall be reimbursed after the facilites are completed and accepted by the City according to a phasing schedule agreed to by the City. Logname: 17TR BLUFF CFA Page 1 of 2 Developer City Enhanced pity„ tandrad Est. Total Sewer $0 $0.00 $397,631.00 $397,631.00 Water $0 $0.00 $998,690.00 $998,690.00 Paving $0 $421,679.00 $0.00 $421,679.00 Inspection $0 $8,434.00 $27,926.00 $36,360.00 Total $0 $430,113.00 $1,424,247.00 $1,854,360.00 The Developer shall install the water and sewer facilities contemplated under this agreement. Any costs incurred in excess of the City's participation shall be borne soley by the Developer. The City shall pay for construction inspection, estimated at two percent (2%) of the total construction cost. The Project is located in Council District 9. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the Water and Sewer Capital Project Funds and the Street and Storm Sewer Project Funds. TO Fun /Account/Centers FROM Fund/Account/Centers P164 539140 0601640151163 $988,690.00 P174 539140 070174013162 $397,631.00 0200.539140 17977XXXXX80 $421,679.00 Submitted for City Manager's Office by Dale Fisseler (Acting) (6140) Originating Department Head: Tom Higgins (6192) Additional Information Contact: Christine Maguire (8187) Logname: 17TR BLUFF CFA Page 2 of 2