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HomeMy WebLinkAboutContract 48866_ - — �. � � . \°� - � � �E�F/VED as�,; � , , -' ,';,';; �C sF���wO ��Ty : 1 ►II CITY ���AR� �''� � CQh�'Tf1ACT tVA. _ r This Bond Substitution and Release Agreement ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"I , a home rule municipal coiporation of the State of Texas, and DDM DEVELOPMENT, INC. (" DM"), a Texas Corporation. The City and DDM are collectively refe�Ted to as the "Parties." RECIT. WHEREAS, DDM is the current owner of designated address of wluch is 12665 Calloway Ce; 71.422 acres of land in the FRANKLIN WOOD RICHARD H GALLOWAY SURVEY, Abstract N� County, Texas, and being part of a 162.156 acre h•ac1 Savings and Loan as recorded in Volume 8606, p� County, Texas (the "Property"); and WHEREAS, on December 12, 1996, foll Property, the Fort Worth City Council approved Q zoning to the Property to allow a Planned Develo Industrial uses and for sand and gravel mining including a time limitation stating that the miuing and a requirement to post and maintain a bond of costs associated with restoring the property followi "Original Bond"); and and WHEREAS, the teim of use for PD/5U for mi W�lEREAS, to date the Property has not been a certain piece of property, the current ietery Road, consisting of appro�mately SURVEY, Abstract No 1698, and the 337 in the City of Fort Worth, Tarrant of land described in deed to First Federal �e 718 of the Deed Records of Tarrant ing the request of a prior owner of the nance 12800, which effected a change in endSpecific Use ("PD/SU") for all Light �erations, subject to certain restrictions, ; could not exceed nine years in duration 0,000 with the City to cover reclamation completion of the mining operations (the has long expired; and ; and WHEREAS, the prior owner of the Property � continues to maintain the Original Bond; WIIEREAS, DDM as ptu•chaser of the Propertyy seeks to have the Original Bond released and offers DDM's own bond in place thereof to rensure reclamation of the property (the "Replacement Bond"); and W�IEREAS, the City is willing to entertain acceptance of a Replacement Bond and release of the Original Bond subject to certain conditio s and acknowledgements. NOW THEREFOKE, the Parties agree as follows: r{�FFICIAB. RECORD �pTY SECRETAi�Y �"�'.'Y�ORTN, T� 1. TIONS As evidenced by its signature below, DDM hereby (i) that the PD/SU for mining on the Property no longer in effect; (ii) that miiung of any kind is not currently (iii) that DDM shall not engage in any mini allow others to do so unless, after the date of such mining operations commencing, autho: fiom the Fort Worth City Council in accord� use process; (iv) that the City's acceptance of DDM's Re interpreted, or construed as an authorization assurance that the Fort Worth City Council � in the future; (v) that DDM shall obtain and, at all times t sha11 maintain a bond in favor of the City that and requirements of Section 1 of City of Fort (vi) that DDM shall make reasonable and Property as soon as reasonably possible anniversary of this Agreement; and (v) that until restoration of the surface of i provide updates no less than semi-annually c such reports to include, at a ininimum, an� received since the filing of the preceding : needed for restoration to be complete and wi the Zoning Division of the ' Planning ar Environmental Se2vices Division of the Code (vi) that DDM shall, on request, allow reprE subsection (v) to inspect records related to including documentation regatding sources documenting compaction and grading activitii 2. As evidenced by its signature below, the City hereby and agrees by Ordinance 12800 is expired and on the Propei��; operations on the Property or knowingly execution of this Agreement and prior to for such mining use has been obtained ; with the City's regular zoning and land cement Bond sha11 in no way be deemed, mining to occur on the Property or as an approve a zoning request to allow mining :il the surface of the Property is restored, in compliance with the terms, conditions, orth Ordinance 12800 (1996); ,nt efforts to restore the surface of the in any event no later than the tenth ; Property is fully complete, DDM shall the status of the restoration process, with imate of (A) the volume of fill material >ort and (B) the volume of fill material such reports to be filed with staff in both Development Department and in the �mpliance Department; and :ives of the depai-tments identified in 1's compliance with its fill permits, quality of fill material and records and agrees BOND SUBSTITUTION t1ND RELEASE AGREEMENT I P2ge 2 Of 4 (i) that DDM's execution of this Agreeme t shall in no way be deemed, interpreted, or conshued as a waiver of any right f DDM to seek permission from the Fort Worth City Council to engage in mini � g activities on the Property in the future; and that, subject to DDM's execution of tl Bond in compliance with the terms of 12800 (1996), the City releases the C letter of release to the prior owner of t� 3. TERM OF AGREEMENT. This Agreemen# shall be effective as of the c shall remain in effect until the surface of the Property 4. CONSIDERATION. The mutual promises and obligations of tY consideration for this Agreement. 5. ADEQUACY OF CONSIDERATION. By their execution below, both DDM and the of the consideration described. fi. SEVERABILITY. The Parties acknowledge and agree that if an is determined by the courts to be invalid, illegal or in the validity of the remaining portions or provisions sl� 7. GovE�uvuvc LAw. This Agreement is entered into in the interpreted in accordance with its laws. 8. REVIEW OF COUNSEL. The Parties acknowledge that each Party review and revise this Agreement and that the non ambiguities are to be resolved against the dr� interpretation of this Agreement or exhibits hereto. 9. SIGNATUR� AUTHORITY. ; Agreement and filing of a Replacement �ction 1 of City of Fort Worth Ordinance ginal Bond and shall, if needed, issue a Property or its bond company. it has been signed by both Parties and been restored. Parties expressed herein shall serve as acknowledge the receipt and adequacy part, term or provision of this Agreement onflict with any law of the State of Texas, �l not be affected thereby. of Texas and shall be construed and its counsel have had the opportunity to rules of construction to the effect that any g party shall not be employed in the BOND SUBSTITUI'ION AND RELEASE AGREEMENT � Page 3 of 4 The person signing this Agreement hereby wanrants that he or she has the legal authority to execute tlus Agreement on behalf of his or her respective Party, and that such binding authority has been granted by proper order, resolutio , ordinance or other authoiization of the entity. The other Party is fully entitled to rely on th s wananty and representation in entering into this Agreement. 10. ENTIRE AGREEM�NT. This written instrument (together with any attachments, e�ibits, and appendices) constitutes the entu•e understanding between the P ies concerning this transaction, and any priar or contemporaneous, oral or written agreement at purports to vary from the terms hereof shall be void. EXECUTED in duplicate originals on the date DDM DEVELOPMENT, INC. David Markwardt Director Date: v?��`l-17 BOND SUBSTITU7'ION AND RELEASE AGREEMENT below. Ok' FORT WORTH istant City Manager e: � � as to form and legality: C. McElroy ant City Attorney itract Authorization: M&C Required �� Secretary, '��F FO��.G� � '' ::� � . '� :_ .� ����. i �F��V��9�aiL ���:i��D ��i'Y ��CRETARY � a�x;�, nrs�,iS".-.�-xr� ^-.�e7 +:_ � Page 4 of 4 ef. re ly VJ on Surety Company Bond No. 1143051 KNOW ALL MEN SYTHESE PRESENTS, That the undersigned DDM Development, Inc. 807 N. Frontage Road, Valley View, TX 76272 as principal and Lexon Insurance Companv 10002 Shelbyville Road, S:.:ite 100, Louisville, KY 40223 as surety are held and firmly bound unto The City of Fort Worth, in the penal sum of Tww& Thousand Dollars (3 20,000-00 ) for the payment of vftch sum, well and truly'to bo made, we herebY jointly and severally bind ourselves, our heirs, administrators, eo emftrs, successors, and assigns. THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas, the City of Fort Worth approved the 12701 Calloway Cemetery Road property for sand and gravel mining for a limited period that has expired, with a requirement that the property be restored to a condition similar to surrounding undisturbed area after the period for mining ended (Case Z-96-1 26, SP-96-20). If the principal shall (i) faithfully restore the property to a condition similar to surrounding undisturbed area and provide regular updates regarding restoration progress in accordance with the requirements of Case Z-96-1 26 and SP-96-20 and the Bond Substitution and Release Agreement and (ii) have fully restored the property no later than the tenth anniversary of this bond, then this obligation shall be null and void; otherwise it shall remain in full force and effect, and the City of Fort Worth may draw against this bond if the principal has not complied with its restoration and update obligations or such surface has not been fully restored by the tenth anniversary of this bond - Date: March 3, 2017 DDM Development, Inc. (Principal) Y Lexon Insurance Company (Sumty) Fly: c Leigh Mc y, Attorney -in -Fact POWER OF ATTORNEY Lx-296716 Lexon Insurance Company KNOW ALL MEN BY THESE PRESENTS, that LEXON INSURANCE COMPANY, a Texas Corporation, with its principal office in Louisville, Kentucky, does hereby constitute and appoint: Brook T. Smith, Raymond M. Hundley, Jason D. Cromwell, James H. Martin, Barbara Duncan, Sandra L. Fusinetti, Mark A. Guidry, Jill Kemp, Lynnette Long, Amy Meredith, Deborah Neichter, Theresa Pickerrell, Sheryon Quinn, Bonnie J. Rowe, Beth Frymire, Michael Dix, Leigh McCarthy, Rebecca M. Reid its true and lawful Attorney(s)- I n- Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond. This authority is made under and by the authority of a resolution which was passed by the Board of Directors of LEXON INSURANCE COMPANY on the 1st day of July, 2003 as follows: Resolved, that the President of the Company is hereby authorized to appoint and empower any representative of the Company or other person or persons as Attorney -In -Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed $5,000,000.00, Five Million dollars, which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney -In -Fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney -In - Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney. Resolved, that the signature of the President and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Assistant Secretary, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond of undertaking to which it is attached, continue to be valid and binding on the Company. IN WITNESS THEREOF, LEXON INSURANCE COMPANY has caused this instrument to be signed by its President, and its Corporate Seal to be affixed this 5th day of August, 2015. LEXON INSURANCE COMPANY BY David E. Campbell President ACKNOWLEDGEMENT On this 5th day of August, 2015, before me, personally came David E. Campbell to me known, who be duly sworn, did depose and say that he is the President of LEXON INSURANCE COMPANY, the corporation described in and which executed the above instrument; that he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation. �TArto''�. R AMY TAYLOR Notary Public- State of Tennessee BY Davidson County Amy PPublic c?, My Commission Exoires 07-08-19 Notal CERTIFICATE I, the undersigned, Assistant Secretary of LEXON INSURANCE COMPANY, A Texas Insurance Company, DO HEREBY CERTIFY that the original Power of Attorney of which the forgoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force. Signed and Seal at Mount Juliet, Tennessee this 3 rcl g MCF° IA �SEAL� V +r >F� �� Day of fn&f 20 1 BY Andrew Smith Assistant Secretary "WARNING: Any person who knowingly and with intent to defraud any insurance company or other person, files and application for insurance of claim containing any materially false information, or conceals for the purpose of misleading, information concerning any fact material thereto, commits a fraudulent insurance act, which is a crime and subjects such person to criminal and civil penalties."