HomeMy WebLinkAboutContract 48301-CA1 CITY SECRETARY
CONTRACT N0. uo I "C
ASSIGNMENT OF AGREEMENT
This Assignment of Agreements (this "Assignment") is entered into as of the date set forth
below between Aqua Metric Sales Company, a registered d/b/a of Thirkettle Corporation, a California
corporation ("Assignor"), and the City of Fort Worth ("Assignee") (Assignor and Assignee are
sometimes referred to herein individually as a"Party" and collectively as the"Parties").
RECITALS:
A. Assignor,as"Consultant"or"Contractor",and Assignee, as"City"or"Client", entered
into that certain Professional Services Agreement (the "PSA") on or about October 14th, 2016;
B. Assignor has entered into a Tower Lease Agreement with Benbrook Water Authority in
connection with its performance of the services set forth in the PSA (the "Agreement," effective
December 3, 2018, and attached hereto as Exhibit A); and
C. Assignor desires to assign the Agreement to Assignee, and Assignee agrees to accept
the assignment of the Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged and confessed by Assignor, Assignor and Assignee hereby agree as follows:
1. Assignor's Assignment. Assignor does hereby ASSIGN, TRANSFER, SET OVER
and DELIVER the Agreement to Assignee, its successors and assigns; TO HAVE AND TO HOLD
the Agreement attached hereto as Exhibit A,together with all and singular the rights and appurtenances
thereto in anywise belonging, unto Assignee, its successors and assigns forever; and Assignor does
hereby bind itself, its successors and assigns forever, so that neither Assignor, nor Assignor's
successors or assigns, shall at any time hereafter have, claim or demand any right or title to the
Agreements, or any part thereof.
2. Further Assurances. Assignor hereby agrees to perform, execute and/or deliver or
cause to be performed, executed and/or delivered any and all such further acts and assurances as
Assignee may reasonably require to perfect Assignee's interest in the Agreements.
3. Assignee's Duty. It is specifically agreed that Assignor shall not be responsible for
the discharge and performance of any duties or obligations to be performed and/or discharged in
connection with the Agreement after the effective date hereof. By acceptance of this Assignment and
by execution hereof,Assignee accepts and agrees to perform all of the terms,covenants and conditions
in connection with the Agreement required to be performed by LESSEE thereunder, from and after
the effective date hereof, but not prior thereto.
4. Assignor's Indemnity. It is further agreed that Assignee shall not be responsible for
the discharge and performance of any duties or obligations required to be performed and/or discharged
in connection with the Agreement prior to the effective date hereof. In such regard As
OFFICIAL RECORD
I CITY SECRETARY
FT. WORTH,TX
to indemnify and hold harmless Assignee,inclusive of attorneys' fees and court costs,from and against
losses incurred by Assignee as a result of claims brought against Assignee, as Assignor's successor in
interest to the Agreement, relating to causes of action arising from any failure by Assignor to perform
or discharge the obligations of the landlord under the Agreement prior to the effective date hereof.
5. Binding Agreement. This Assignment is binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
IN WITNESS WriEREOF, Assignor and Assignee have caused this Assignment to be
executed the_? -tray o , 2018.
ASSIGNEE: ASSIGNOR:
CITY OF FART WORTHAQUA ETRI SA �S,.PqM A7V—
ACM
By. � � (�' / By.
Name:J'csu5 T. aha ea, Name: Michael Cartwright
Assistant City Manager Title: Vice President of Operations
Date: Date: 11/8,/4
Contract Compliance Manager
By signing, I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuringperformance and reporting requirements.
Name: MAW enc Rac-% 1k-
Title: My N Zo Q"Vm w U4 0
APPRO AS TO FORM ND LEGALITY:
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Jessica S s an
tom:
Senior Ass ant City Attorney ,
Form 1295: N/A ��
AT STED
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Mary Kay ;^
City Secretary
M&C #N/A 4 °F
AGREED AND APPROVED BY LESSOR
BENBROOK WATER AUTHORITY
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CITY SECRETARY
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TOWER LEASE AGREEMENT
THIS TOWER LEASE AGREEMENT ("Agreement"), dated as of December 3, 2018,
(the "Effective Date"), is by and between Benbrook Water Authority,having a mailing address of
P.O. Box 26929, Benbrook, TX 76126 (hereinafter referred to as "LESSOR"), and Aqua Metric
Sales Company, a registered d/b/a of Thirkettle Corporation, a California corporation, having a
mailing address of, 4050 Flat Rock Drive, Riverside, CA 92505 (hereinafter referred to as
"LESSEE"), individually referred to as "Party" and collectively as "Parties."
WHEREAS, LESSOR is the owner of the following described real property, including a
water tower located thereon (the "Tower"), lying and being situated at 10222 Rolling Hills Drive,
Benbrook, Texas 76126 (the "Property"), and such Property being more particularly described in
Exhibit A, which is attached hereto and incorporated herein for all purposes. Tower and Property
are sometimes collectively referred to in this Agreement as the"Leased Premises."
WHEREAS,LESSEE,as a project contractor for the City of Fort Worth("CITY"), desires
to lease antenna space on the Tower, together with a right of way for ingress and egress, for the
purpose of establishing a radio transmission facility, with the intent of assigning this Agreement
to the CITY.
NOW THEREFORE, in consideration of the covenants, conditions, agreements, and
rents hereinafter set forth, the adequacy of which is hereby acknowledged, LESSOR and
LESSEE agree as follows:
1. Leased Premises. LESSOR hereby leases to LESSEE, and LESSEE takes from
LESSOR, sufficient space on the Tower to attach LESSEE's equipment and for related ingress
and egress to and from the Tower. The equipment authorized for installation is set forth in Exhibit
B, which is attached hereto and incorporated herein for all purposes. LESSEE may not add
additional equipment and/or antennae from that shown on Exhibit B without the prior written
approval of LESSOR, which must include review and approval of the plans and specifications by
LESSOR's consultant engineer, at LESSEE's sole cost andexpense. However, LESSEE may
replace the aforementioned equipment with similar and comparable equipment as needed to
modernize or improve such equipment, without obtaining additional written approval of
LESSOR; provided said replacement does not increase the number of antennas on the Tower or
increase the weight loading on the Tower.
2. Equipment Servicing. LESSOR shall grant any and all easements as may be required by
the appropriate electric and telephone companies for the purpose of servicing LESSEE's
equipment. In addition, LESSOR hereby agrees to allow LESSEE the right to use a reasonable
amount of additional property contiguous to the Tower during construction of the radio
transmission facility after notice and designation of such additional property to LESSOR. Said
additional construction easement is to be restored as near as reasonably possible to its condition
prior to construction by LESSEE. LESSEE shall not use or permit the property to be used for any
purpose other than a radio transmission facility without written consent of LESSOR. Although
such equipment and appurtenances may become fixtures, they shall be and shall remain property
of LESSEE and LESSEE shall have the right to remove all of them at the expiration or
termination of this Agreement. LESSEE shall have access to connect to LESSOR's electrical
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service for it equipment installed in LESSOR'S facility. All costs for any electrical used by
LESSEE is factored into the amount paid by LESSOR under this Agreement.
3. Access. LESSEE shall have access to the Leased Premises in order to install, operate, and
maintain its equipment. LESSEE shall have access to the Leased Premises only with the prior
written approval of LESSOR. LESSEE shall request access to the Leased Premises twenty-four
(24) hours in advance, except in an emergency.
4. Term. The "Initial Term" of this Agreement shall be ten (10) years from the Effective
Date, and terminating at midnight on the last day of the One Hundred and Twentieth (120th) full
month following the Effective Date. If, at the end of ten(10) years, this Agreement has not been
terminated by either Party, this Agreement shall automatically be extended for five(5)additional
five(5)year terms(each a"Term"),unless either Party terminates it at the end of the then current
Term by giving the other Party written notice of the intent to terminate at least six (6) months
prior to the end of the then current Term. LESSEE shall remove all equipment from the Leased
Premises within ninety (90) days of any termination and/or expiration of the Initial Term or a
Term that occurs pursuant to the terms of the Agreement. Any failure by LESSEE to remove its
equipment within ninety (90) days of any termination and/or expiration of this Agreement shall
authorize LESSOR to remove and discard of the equipment as necessary in the sole discretion of
LESSOR.
5. Rent Payments. Commencing on December 3, 2018, the rent payable under the
Agreement shall be as outlined in the attached Exhibit C, which is incorporated herein for all
purposes, for a total payment of Five Thousand Four Hundred and 00/100 Dollars ($5,400.00)
per year(the "Rent"), and shall continue during the Initial Term and any Term. The Rent includes
the escalation adjustment at the rate of five percent (5%) annually, with the first escalation
adjustment paid by LESSEE to LESSOR beginning on December 3, 2019, as outlined in the
attached Exhibit C. Any additional equipment installed beyond that provided for in Exhibit B
shall require LESSOR'S prior approval, including the same consultant engineer review and
approval as set forth in Section 1, and may result in an increase to the Rent. Any such additional
equipment and related increases to the Rent shall be set forth in a separate written agreement
between the Parties.
6. Authorized Uses and Governmental Approvals. The Leased Premises may be used by
LESSEE only for permitted uses, which are: (1) the transmission and reception of
communications signals; and (2) the construction, alteration, maintenance, repair, replacement
and relocation of related facilities, towers, antennas, and equipment; and activities related to any
of the foregoing. LESSEE shall obtain(prior to or after the Effective Date), at LESSEE's expense,
all licenses and permits or authorizations required for LESSEE's use of the Leased Premises from
all applicable government and/or regulatory entities (the "Governmental Approvals") and may
(prior to or after the Effective Date) obtain a title report, perform surveys, soil tests, and other
engineering procedures or environmental investigations on, under and over the Property,
necessary to determine that LESSEE's use of the Leased Premises will be compatible with
LESSEE's engineering specifications, system, design, operations and Governmental Approvals.
LESSOR agrees to reasonably cooperate with LESSEE(at no cost to LESSOR), where required,
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to perform such procedures or obtain Governmental Approvals. LESSOR agrees that LESSEE
shall have the right to immediately terminate this Agreement without any penalty or liability if
(i) LESSEE shall not have obtained all Governmental Approvals on or before the Effective Date
specified above, (ii)any such Government Approvals are canceled, expires,lapses or is otherwise
withdrawn or terminated by the governing authority, or (iii) LESSEE notifies LESSOR of
unacceptable results of any radio test, title report or of the survey or soils test. LESSOR also
agrees that if, based on the result of any environmental investigation or inquiry, LESSEE
determines that the condition of the Property is unsatisfactory or if LESSEE believes that leasing
or continued leasing of the Leased Premises would expose LESSEE to undue risks to government
action or intervention or third-party liability, LESSEE may, without any penalty or liability,
immediately terminate this Agreement.
7. Primary Purpose. LESSEE acknowledges and agrees that the primary use of the Leased
Premises is and shall continue for the Initial Term and any Term of this Agreement to be for the
storage and distribution of potable water to LESSOR'S customers ("Primary Purpose") and that,
notwithstanding any term or provision in this Lease to the contrary, LESSEE agrees that this
Agreement and the LESSEE's rights hereunder are and at all times shall remain subordinate and
inferior to the Primary Purpose. LESSEE agrees at all times during the Initial Term and any
Term of the Agreement to conduct its activities on the Leased Premises in such a manner so as
to not materially adversely interfere with the Primary Purpose. Any provision to the contrary
contained in this Agreement is hereby modified accordingly.
8. Lessor Maintenance.LESSOR shall take reasonable steps,if possible,to notify LESSEE
prior to conducting any unforeseen emergency maintenance or repair required on the Property.
With regard to LESSOR'S scheduled maintenance on the Property, LESSOR shall provide
LESSEE with written notice not less than sixty(60)days prior to commencement of the scheduled
maintenance. LESSEE shall be authorized to relocate its equipment authorized under this
Agreement at a temporary location agreeable to the Parties for the duration of the maintenance.
LESSEE'S failure to remove its equipment in full upon LESSOR providing notice under this
section and prior to the scheduled maintenance commencement date shall authorize LESSOR to
remove LESSEE's equipment as necessary and in the sole discretion of LESSEE in order to
perform the scheduled maintenance. The written notice required under this section shall be
delivered according to the applicable notice provisions in Section 16 of this Agreement.
9. Interference. LESSEE covenants and agrees that LESSEE's equipment, its installation,
operation and maintenance will:
A. Not interfere with LESSOR's operations or related repair and maintenance activities or
with the operation of pre-existing radio equipment at the Leased Premises, if any.
LESSEE shall cease all actions that materially interfere with the Primary Purpose
immediately upon actual notice of such interference. In the event there is harmful
interference to existing electronic equipment that is not within the scope of the Primary
Purpose, LESSEE will promptly take all reasonable steps necessary to identify the
problem, and, if caused by LESSEE's equipment, to take all reasonable steps to
eliminate said harmful interference within ten (10) days after written notice from
LESSOR to LESSEE advising of the interference. If said interference cannot be
eliminated within thirty(30)days of written notice thereof, LESSEE agrees to suspend
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operations(transmissions) at the site while the interference problems are studied and a
means found to mitigate them is identified. If said interference cannot be eliminated,
then LESSEE shall remove its equipment outlined in Exhibit B from LESSOR's
Property and this Agreement shall hereupon be terminated.
B. LESSOR shall cause that all subsequent users of the Tower structure to first coordinate
with LESSEE to ensure that their frequencies and antenna locations will be compatible
with LESSEE's and to agree to a clause similar to Subsection (A) of this section, for
the purpose of eliminating harmful interference if said user's radio equipment should
interfere with that of the LESSEE herein. However, LESSOR does not guarantee to
LESSEE subsequent non-interference with LESSEE's operations.
10. Eminent Domain and Sale. If all or any part of the Leased Premises, or if all or any part
of the LESSOR's land underlying the radio transmission facility or roadway to the Leased
Premises is taken by eminent domain or other action by jurisdictions having the legal right to take
said lands, and if said taking in the sole discretion of LESSEE renders the Leased Premises
unusable for its intended purpose, then, at LESSEE's option, (1)this Agreement may be declared
terminated,null and void, and of no further force and effect, and there shall be no further payment
of rents except that which may have been due and payable at the time of said taking; or (2)
LESSEE shall be compensated by LESSOR from the proceeds of the eminent domain for the
costs incurred by LESEE to relocate its facilities. Any sale by the LESSOR of all or part of the
Leased Premises, shall be under and subject to this Agreement and LESSEE's rights hereunder.
11. Indemnification. To the extent permitted by law, LESSEE shall indemnify LESSOR
and hold LESSOR harmless against any claim of liability or loss from personal injury or
property damage which may arise out of LESSEE's knowing,negligent, or willful misconduct in
connection with the Leased Premises or any conditions created on the Leased Premises by
LESSEE's conduct, excepting, however, such claims or damages as may be due to or caused in
whole or in part by the acts or omissions of LESSOR, or its agents and servants. In the event of
LESSOR's negligence or willful misconduct, LESSOR shall so indemnify LESSEE, to the
extent allowable by law. Except as otherwise provided in this section,neither Party shall be liable
to the other, or any of their respective agents, representatives, employees for any lost revenue,
lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or
consequential damages, loss of data, or interruption or loss of use of service, even if advised of
the possibility of such damages, whether under theory of contract, tort (including negligence),
strict liability or otherwise. This section shall not serve as a waiver of either Parties' immunity
as may be granted under law. Nothing contained herein shall ever be construed so as to require
the CITY to assess, levy and collect any tax to fund its obligations under this section.
12. Environmental Regulations. LESSEE represents, warrants, and covenants to LESSOR
that LESSEE shall at no time during the Initial Term or any Term of this Agreement use or permit
the Leased Premises to be used in violation of any Environmental Regulations. To the extent
permitted by law, LESSEE shall indemnify and hold LESSOR harmless from any and all claims
of liability under any Environmental Regulations arising out of LESSEE's use or occupancy of
the Leased Premises. For purposes of these provisions, the term "Environmental Regulations"
shall mean any law, statute, regulation, order or rule now or hereafter promulgated by any
Governmental Authority, whether local, state or federal,relating to air pollution,waterpollution,
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and/or transporting, storing, handling, discharge, disposal or recovery of on-site or off-site
hazardous substances or materials, as same may be amended from time to time,including without
limitation the following: (i)the Clean Air Act(42 U.S.C. §§ 7401 et seq.); (ii) the Clean Water
Act (33 U.S.C. § 1251 et seq.); (iii) RCRA, as amended by the Hazardous and Solid Waste
Amendments of 1984 (42 U.S.C. § 6901 et seq.); (iv) CERCLA, as amended by the Superfund
Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.); (v) Toxic Substances
Control Act (15 U.S.C. §§ 2601-2692); (vi) the Federal Insecticide, Fungicide and Rodenticide
Act as amended(7 U.S.C. § 135 et seq.); (vii)the Safe Drinking Water Act (42 U.S.C. § 300(f) et
seq.; (viii) OSHA; (ix) Emergency Planning and Community Right-To-Know Act of 1986 (42
U.S.C. §§ 11001- 11050); and(x)National Environmental Policy Act(42 U.S.C. §§ 4321-4347),
as the same may be amended and all statutes passed in replacement thereof. Nothing contained
herein shall ever be construed so as to require LESSEE to assess, levy and collect any tax to fund
its obligations under this section.
13. Required Insurance. LESSEE shall obtain third party insurance covering its activities
under this Agreement in amounts satisfactory to LESSOR, and LESSEE shall provide LESSOR
with a Certificate of Insurance naming LESSOR as an additional insured. Once this Agreement
is assigned to CITY, LESSOR understands that CITY as LESSEE is self-insured, and CITY will
not be required to carry the third party insurance contained under this section. However, in the
event CITY as LESSEE does obtain third party insurance covering its activities under this
Agreement in the future, CITY will provide LESSOR with a Certificate of Insurance naming
LESSOR as an additional insured within thirty (30) days of obtaining any such insurance
coverage.
14. Taxes. If applicable, LESSOR shall be responsible for all ad valorem taxes and taxes
attributable to LESSOR's personal property that may from time to time be levied on the Leased
Premises. If applicable, LESSEE shall be responsible for any and all taxes levied directly upon
its personal property and equipment, including LESSEE's equipment installed in Exhibit B.
Notwithstanding the foregoing, LESSEE shall not have the obligation to pay any tax, assessment,
or charge that LESSEE is disputing in good faith in appropriate proceedings prior to a final
determination that such tax is properly assessed provided that no lien attaches to the LESSOR's
property. LESSEE shall have the right,at its sole option and at its sole cost and expense,to appeal,
challenge or seek modification of any tax assessment or billing for which LESSEE is wholly or
partly responsible for payment. LESSOR shall reasonably cooperate with LESSEE at LESSEE's
expense in filing, prosecuting and perfecting any appeal or challenge to taxes as set forth in the
preceding sentence, including but not limited to, executing any consent, appeal or other similar
document.
15. Venue. This Agreement and the performance thereof shall be governed, interpreted,
construed and regulated by the laws of the State of Texas. Venue shall lie in Tarrant County,
Texas.
16. Notices. All notices hereunder must be in writing and shall be deemed validly given if
sent by certified mail, postage prepaid, addressed as shown below (or to any other address that
the Party to be notified may have designed to the sender by like notice):
LESSEE: Aqua Metric Sales Company
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Attn: Chris Thirkettle
4050 Flat Rock Drive
Riverside, CA 92505
Phone: (951) 637-1400
Facsimile: (951) 637-1500
CITY AS LESSEE: City of Fort Worth
Attn: Jesus J. Chapa
200 Texas Street
Fort Worth, TX 76102-6311
Phone: (817) 392-5804
Facsimile: (817) 392-8654
With a copy to:
City of Fort Worth
City Attorney's Office
200 Texas Street
Fort Worth,Texas 76102
Attn: City Attorney
LESSOR: Benbrook Water Authority
Attention: General Manager
P.O. Box 26929
Benbrook Texas 76126
Phone: 817-249-1250
Fax: 817-249-6965
17. Assignment. LESSEE will assign this Agreement to CITY on the form attached to this
Agreement as Exhibit D, which is attached hereto and incorporated herein for all purposes,within sixty
(60) days from the Effective Date. Failure to assign this Agreement in accordance with this
Section 17 shall result in automatic termination of the Agreement. CITY shall become the
LESSEE for all purposes as outlined within the Agreement, except as otherwise described.
Except as authorized in this section, LESSEE will not mortgage,pledge, encumber or assign this
Agreement or sublet the Leased Premises, in whole or in part,to any person, firm, or corporation.
LESSOR shall not assign this Agreement or encumber the Leased Premises without first receiving
the LESSEE's written consent, which will not be unreasonably withheld. This Agreement shall
be binding on any future owner of the Leased Premises.
18. Memorandum of Agreement. For the purpose of providing constructive notice hereof,
LESSOR and LESSEE may execute a Memorandum of Lease Agreement, in recordable form and
LESSEE shall have the same recorded in the land records of the aforesaid county and state.
19. Default. Any of the following occurrences, conditions, or acts shall be deemed a
"Default"under this Agreement:
A. if LESSEE fails to pay amounts due under this Agreement within ten (10) business
days of its due date; or
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B. if either Party fails to observe or perform its obligations under this Agreement and
(except for (i) LESSEE's duty to immediately cease its transmission in the event of emergency
interference as above described), and (ii) Lessee's duty to pay rental amounts when due) does
not cure such failure within thirty (30) days from its receipt of written notice of breach or such
longer period as may be required to diligently complete a cure commenced within the thirty-day
(30)period.
20. Termination. Except as otherwise provided herein, this Agreement may be terminated,
without any penalty or further liability as follows:
A. upon ten (10) business days written notice in the event of a monetary Default, as
defined in Section 19, which shall not relieve LESSEE of the obligation to pay all past
due Rent payments;
B. upon ninety (90) days written notice by LESSEE if LESSEE is unable to obtain,
maintain, or otherwise forfeits or cancels an license, permit or Governmental
Approvals necessary to the construction and/or operations related to LESSEE's use of
the Leased Premises;
C. upon ninety(90)days written notice by LESSEE if the Leased Premises are or become
unacceptable under LESSEE's design or engineering specifications for its installed
equipment or the communications system to which the Antennae Facilities belong;
or
D. upon six (6) months written notice by LESSOR in the event LESSOR determines, in
its sole discretion, to discontinue its use of the Tower.
21. Entire Agreement. It is hereby mutually agreed and understood that this Agreement
contains all agreements, promises and understandings between the LESSOR and LESSEE and
that no verbal or oral agreements promises or understandings shall or will be binding upon either
the LESSOR or LESSEE in any dispute, controversy or proceeding at law, and any addition to,
variation or modification of this Agreement shall be void and ineffective unless in writing signed
by the Parties hereto.
22. Recitals. All of the above recitals are incorporated and made a part of this Agreement.
23. Multiple Counterparts. This Agreement maybe executed in counterparts, each of which
shall be an original and all of which shall constitute but one and the same instrument.
24. Severability. The provisions of this Agreement are severable, and if any provision or part
herein or the application thereof to any person or circumstance shall ever be held by any court of
competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this
Agreement and the application of such provision or part of this Agreement to other persons or
circumstances shall not be affected thereby.
25. Waiver. No failure on the part of either Party to this Agreement to require the
performance by the other of any portion of this Agreement shall in any way affect either Party's
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right to enforce such provision,nor shall any waiver by either Party be taken or held to be a waiver
of any other provision. No rights under this Agreement may be waived and no modification or
amendment to this Agreement may be made except by separate written agreement executed by
both Parties.
26. Right to Audit. LESSOR agrees that LESSEE shall,until the expiration of three(3)years
after final payment under this Agreement,or the final conclusion of any audit commenced during
the said three (3) years, have access to and the right to examine at reasonable times any directly
pertinent books, documents, papers and records of LESSOR involving transactions relating to
this Agreement at no additional cost to LESSEE. LESSOR agrees that LESSEE shall have access
during normal working hours to all necessary LESSOR facilities and shall be provided adequate
and appropriate work space in order to conduct audits in compliance with the provisions of this
section. LESSEE shall give LESSOR reasonable advance notice of intended audits.
27. Force Majeure. The Parties shall be excused for the period of any delay in the
performance of any obligations hereunder when prevented from doing so by cause or causes
beyond the Parties' absolute control, which shall include, without limitation, all labor disputes,
civil commotion, civil disorder, riot, civil disturbance, war, war-like operations, invasion,
rebellion, hostilities, military or usurped power, sabotage, governmental regulations, orders,
moratoriums or controls, fire or other casualty, inability to obtain any material, services or
financing or Acts of God.
28. Governmental Powers. It is understood and agreed that by execution of this Agreement,
neither Party waives or surrenders any of its governmental powers or immunities.
29. No Partnership. No provisions of this Agreement shall be deemed or construed to
constitute a partnership or joint venture.
30. No Third Party Beneficiary. For purposes of this Agreement, the Parties specifically
agree that the Agreement only affects matters between the Parties to this Agreement, and is in no
way intended by the Parties to benefit or otherwise affect any third person or entity other than the
CITY as set forth herein.
31. Independent Contractor. It is expressly understood and agreed that the Parties shall
perform their obligations and responsibilities hereunder as independent contractors and not as an
officer, agent, representative or employee of the other Party; that each Party shall have exclusive
control of and the exclusive right to control the details of their obligations and responsibilities
and all persons performing same; that each Party shall be solely responsible for the acts or
omissions of its officers, agents, employees or other persons under its supervision, management
and control; that the doctrine of respondeat superior shall not apply as between LESSEE and
LESSOR; and that nothing herein shall be construed as creating a partnership or joint enterprise
between LESSEE and LESSOR. Any intention to create a joint venture or partnership relation
between the Parties hereto is hereby expressly disclaimed.
32. Authority to Execute. The individuals executing this Agreement on behalf of the
respective Parties below represent to each other and to others that all appropriate and necessary
action has been taken to authorize the individual who is executing this Agreement to do so for
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and on behalf of the Party for which his or her signature appears, that there are no other parties
or entities required to execute this Agreement in order for the same to be an authorized and
binding agreement on the Party for whom the individual is signing this Agreement and that each
individual affixing his or her signature hereto is authorized to do so, and such authorization is
valid and effective on the date hereof. The Parties have each completed the requirements of
Chapter 2252, Texas Government Code, as applicable.
33. Construction.Whenever used herein the singular number shall include the plural and the
plural number shall include the singular. Whenever used herein the masculine gender shall
include the feminine and neuter genders and the neuter gender shall refer to any gender. Section
headings used in this Agreement are intended for convenience only and not necessarily to
describe the intent of a particular Section and therefore shall not be construed as limiting the
effect of any provision of this Agreement. This Agreement shall be deemed drafted equally by
all Parties hereto. The language of all parts of this Agreement shall be construed as a whole
according to its fair meaning, and any presumptions or principle that the language herein is to be
construed against any Party shall not apply.
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IN WITNESS WHEREOF, the Parties have caused their properly authorized
representatives to execute the Agreement on the Effective Date.
APPROVED FOR BENBROOK WATER
AQUA METRIC SALES COMPNAY,A AUTHORITY: LESSOR
REGISTERED D/B/A,THIRKETTLE
CORPORATION
By: 4' G�j 6L By: s
Michael Cartwright Print Name: Ebv.-d M.
Vice President of Operations Title: Rta n�c/
Date: J Date: //�1*5?
[ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
i
Page 10 of 18 CITY SECRETARY
FT. WORTH,TX
LESSOR ACKNOWLEDGEMENT
STATE OF TEXAS )
WITNESS
COUNTY OF TARRANT )
I certify that I know or have satisfactory evidence that is
the person who appeared before me, and said person acknowledged that said person signed this
instrument, on oath stated that said person was authorized to execute the instrument and
acknowledged it as the of Benbrook Water Authority,
to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED:
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of
My appointment expires:
Page 11 of 18
LESSEE ACKNOWLEDGEMENT
STATE OF QUA-; ) WITNESS:
COUNTY OF�/yll��Q >✓ )
I certify that I know or have satisfactory evidence that M I!/I'1 C"
is the person who appeared before me, and said person acknowledged that he/she igned this
instrument on oath stated that he/she was aut' orized toexecute the instrurnent a ' ac4,owledged
it as the we;i of
1004, to be
the free and voluntary act
o�f'suu ,A rparty for the uses and purposes mentioned in the instrur
jent.
DATED:
Notary Seal
Afr
(SI nature of Notary)
"�
� :Notary
O CAROLINA RIVAS V
10 # 130778951 (Legib Print or Stamp Name of Notary)
ommission Expires Notar Public in and for the State of
ugust 15,2020 '1
ha
My appointment expires:
UirlriUAL Edi Y.OA
Page 12 of 18 CITY SECRARV
EXHIBIT A
Benbrook Storage Tank Property Site Location
EXHIBIT A
Zollie Allen Elevated Storage Tank
Benbrook Water Authority
x
CONCRETE AVEMENT
`•�� S 49'23" E 1 GA
gyp. •:rs.� :.s�., ="Y::
e
o � e
i^
�7
x ELE �ED STORA A
i
.�d CHA LINK FENCE
n
u_
z �
89049'23' W 0.00' \
f
1
I
i
BENBROOK NATER AND SEVER AUTHORITY = Cwler�
ZOLLIE ALLEN ELEVATED STORAGE TAW, CAM a�w-�-
0"-V%look"I a3no I Y\tr~.Ow
Page 13 of 18
EXHIBIT B
LESSEE's Authorized Equipment
- Sensus Base Station(Sensus M400B or comparable model)
Omni Antenna(Omni BCD-8707-EDIN-X-25 or comparable model)
- GPS Antenna(Trimble® BulletTM 360 or comparable model)
- Cellular Modem(Sierra Wireless RV50 or comparable model)
Required equipment to mount antenna to structure
- 7/8" coax from antenna to base station
Required electrical installation to power equipment
Page 14 of 18
EXHIBIT C
Lease Fee Schedule
BWA Stm"*Task Leasft F"
Exh"C
WMAMM"W" Tw1 "Ma TM3 TM4 TMs Tag+i TWT TM• TM! TMu
I 1 1 1 1 1 1 1 1
111+1et $459003 S472ra $44613 $5211.93 $54646 $574 111 SW3041 $63320 5664115 5691-10
CT4t 55,48800 $5.679 00 $S,953%01 $6,251 19 $6,563731 $6991921 57,236 S2 S 7—M 341 57,979.26 $3.1-n 17
Town TM U Tarr 1i ton a Town riO" ri911T TMS vaw" Twas
1 I I 1 1 1 I I 1 1
$733.00 S7696% 5989 14 5949.54 $99897 $935 52 SW 29 SIA3141 51,84:93 S1,13714
59,796A3 $9,235.83 $9,697.62 $Ic,ld2.51 sx,691b3 $1122621 $11,79752 512,37690 512.99574 513,645,53
Town ri4.xe I ring! rirri Tawas vown vmv Tawas yawn I Town
1 11 11 11 ]
$1,193.99 S1..S3fi5j $1,316.37 $1392.14 $1,45129 $1 S?lj*l sikmasl 51,6®006 si.?(A.Mi 51,852.26
$14.327,21 S1S,fl442 $15,796.+11 $16.506.23 $:7,41554 $3..m-12 $19 W 63 S",16066 S21369.7O $22,22713
TM 33 LVWJQ I TMS I TOWN I 1 wJS I MAL
1 1 1 1 1
51,944101 52,042.12 5-2,14422 $.2,251.43 $2,36401
S23.33SA91 S24.WS Al $25,739 68 $27,017.22 $29,360.80 $"1.129 h6
Page 15 of 18
EXHIBIT D
ASSIGNMENT OF AGREEMENT
This Assignment of Agreements (this "Assignment") is entered into as of the date set forth
below between Aqua Metric Sales Company, a registered d/b/a of Thirkettle Corporation, a
California corporation ("Assignor"), and the City of Fort Worth ("Assignee") (Assignor and
Assignee are sometimes referred to herein individually as a "Party" and collectively as the
"Parties").
RECITALS:
A. Assignor, as "Consultant" or "Contractor", and Assignee, as "City" or "Client",
entered into that certain Professional Services Agreement (the "PSA") on or about October 141H,
2016;
B. Assignor has entered into a Tower Lease Agreement with Benbrook Water Authority in
connection with its performance of the services set forth in the PSA (the "Agreement," effective
December 3, 2018, and attached hereto as Exhibit A); and
C. Assignor desires to assign the Agreement to Assignee, and Assignee agrees to accept
the assignment of the Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged and confessed by Assignor, Assignor and Assignee hereby agree as follows:
1. Assignor's Assignment. Assignor does hereby ASSIGN, TRANSFER, SET OVER
and DELIVER the Agreement to Assignee, its successors and assigns; TO HAVE AND TO HOLD
the Agreement attached hereto as Exhibit A, together with all and singular the rights and
appurtenances thereto in anywise belonging, unto Assignee, its successors and assigns forever; and
Assignor does hereby bind itself, its successors and assigns forever, so that neither Assignor, nor
Assignor's successors or assigns, shall at any time hereafter have, claim or demand any right or title
to the Agreements, or any part thereof.
2. Further Assurances. Assignor hereby agrees to perform, execute and/or deliver or
cause to be performed, executed and/or delivered any and all such further acts and assurances as
Assignee may reasonably require to perfect Assignee's interest in the Agreements.
3. Assignee's Duty. It is specifically agreed that Assignor shall not be responsible for
the discharge and performance of any duties or obligations to be performed and/or discharged in
connection with the Agreement after the effective date hereof. By acceptance of this Assignment
and by execution hereof, Assignee accepts and agrees to perform all of the terms, covenants and
conditions in connection with the Agreement required to be performed by LESSEE thereunder, from
and after the effective date hereof, but not prior thereto.
Page 16 of 18
4. Assignor's Indemnity. It is further agreed that Assignee shall not be responsible for
the discharge and performance of any duties or obligations required to be performed and/or
discharged in connection with the Agreement prior to the effective date hereof. In such regard
Assignor agrees to indemnify and hold harmless Assignee, inclusive of attorneys' fees and court
costs, from and against losses incurred by Assignee as a result of claims brought against Assignee, as
Assignor's successor in interest to the Agreement, relating to causes of action arising from any
failure by Assignor to perform or discharge the obligations of the landlord under the Agreement
prior to the effective date hereof.
5. Bindine Agreement. This Assignment is binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be
executed the_day of , 2018.
ASSIGNEE: ASSIGNOR:
CITY OF FORT WORTH AQUA METRIC SALES COMPANY
By: By:
ACM Name: Name: Michael Cartwright
Assistant City Manager Title: Vice President of Operations
Date: Date:
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:
Title:
APPROVED AS TO FORM AND LEGALITY:
Jessica Sangsvang
Senior Assistant City Attorney
Form 1295: N/A
ATTESTED BY:
Mary Kayser
City Secretary
M&C #N/A
Page 17 of 18
AGREED AND APPROVED BY LESSOR
BENBROOK WATER AUTHORITY
Name:
Title:
Date:
Page 18 of 18