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HomeMy WebLinkAboutContract 43267 (2)May 17, 2012 CITY SECRETARY AGRIR1RMNT CONTRACT 40. CSNSTRUCT]ItN AN1O) MAIINTNTJXANCVJ OV V\JA j ATKIT\TC IKE RAI aS 'VMS A C E EI` �� ,�fN T ("'Maintenance gl°eement orr q p k 2reef ent`°) is made and entered into May q 2012, by and between the City of limit Worth, a home rule municipal corporation situated in Tarrant, Denton, Parker, and Wise Counties, Texas (hereinafter referred to as "City") and Walsh Ranches Limited Part ; , ersJ} p9 a Texas limited partnership (hereinafter referred to as "Owner") . SEC KIN- 1 KSCR IF1 EON OIL, PROPERTY 1.01 The City and Owner hereby agree that Owner will provide, furnish, and perform the services specified herein to provide City -required facilities in a public pedestrian access easement in lieu of standard facilities in the right-of-way (hereinafter called the "Project Sites") located on Walsh Ranch as further described in this Agreement in Exhibit "A", attached and incorporated into this Agreement. SECTION .TION 2 UMESAND ';ESPONSIIILI► aS 2.01 Owner n er shall commence, carry on, and provide such services in accordance with this Agreement and its attachments and all applicable laws. In providing such services, Owner shall take such steps as are appropriate to ensure that the work involved is properly coordinated with any related work performed by the City or the City's authorized representative. 2.02 Owner represents that it has or will secure, at its own expense, all materials, supplies, machinery, equipment, tools, superintendence, labor, personnel, insurance, and other accessories and services necessary to provide maintenance of the following elements ("Improvements"), all of which are to installed pursuant to and as more particularly described in Construction Contract between Owner and Conatser Construction Tx, L.P., Owner's General Contractors, which contract is the subject of Community and Facilities Agreement Contract No. 2012-010 between Owner and the City of Fort Worth Transportation and Public Works Department (such Construction Contract and Community and Facilities Agreement Contract are referred to herein as "Contracts99): a. Special or nonstandard sidewalk and trails. 2.03 The City shall be responsible for maintaining its streets and travel lanes in accordance with normal City policies and procedures. The City shall take such steps as are appropriate to ensure that the work involved is properly coordinated with any related work performed by Owner or the Owner's authorized representative. Page 1 of 13 OFFICIAL RECORD CITY SECRETARY I Ft WORTH, TA j l -01-12 PO4: 1 IN 2.04 In the event that any City -owned property, such as utilities, equipment, turf, etc., are damaged or destroyed during maintenance of the Improvements due to negligence or acts of omissions of Owner, Owner shall be responsible for all repairs or replacements. 2.05 In the event Owner, its successor or assigns, fails to maintain the areas described in Section 2.02 in the manner required by this Maintenance Agreement, City shall provide written notice of the non -compliant conditions to Owner, its successor or assigns. Owner, its successors or assigns, shall make any necessary repairs to comply with this Maintenance Agreement within thirty (30) days of receipt of such written notice or, if such repairs are not reasonably able to be completed within thirty (30) calendar days, Owner shall have, within that period, begun work on such repairs and shall diligently pursue them to completion. Provided, however, that if the non- compliant conditions create a condition, which poses an immediate threat to life, health, or property such repair shall be completed within thirty (30) days of receipt of written notice. If Owner, its successors or assigns, does not make such repairs as provided herein, the City may enter upon the Project Sites and take whatever steps reasonably necessary to correct the non- comphant conditions and to charge the costs of such repairs to Owner, its successors and assigns. 2.06 In the event the City pursuant to this Agreement, performs any work of any nature that is Owner's obligation hereunder and which Owner has failed to perform, or expends any funds in performance of said work for labor, use of equipment, supplies, materials, and the like that is Owner's obligation hereunder and which Owner has failed to perform, Owner, its successors or assigns, shall reimburse the City upon demand for reasonable costs incurred by the City, within thirty (30) days of receipt thereof. In the event that Owner or its successors or assigns fails to pay the City for the costs incurred under this section the City shall impress a lien for the costs of such work upon other lots within the Project Site area owned by Owner. Such lien shall be perfected by filing in the office of the County Clerk of Tarrant County, Texas an affidavit identifying the property to be charged with such lien, stating the amount thereof, and making reference to this Agreement A release of lien shall be filed in the office of the County Clerk of Tarrant County, Texas upon reimbursement by Owner for all reasonable and actual costs incurred by the City for the work performed. 2.07 In the event the City performs any work of any nature, or expends any funds in performance of said work on any of the areas requiring maintenance by Owner as described in Section 2 02, the City shall return those areas to their original condition upon completion of the work. SECTION 3 TERM OF AGREEMENT This Agreement shall be recorded among the land records of Tarrant County, Texas, and shall constitute a covenant running with the land, and shall be binding on Owner, its successors and assigns, and any other successors in interest with respect to the Project Sites. Page 2 of 13 SECTION 4 TITLE AND CONSTRUCTION 4.01 The Parties acknowledge that the Improvements to be maintained as provided in this Agreement are the subject of the Contracts and that all necessary reviews, approvals, consents, inspections and modifications of such Improvements, if any, have been or will be made pursuant to those Contracts. Subject to the provisions of the Contracts, Owner shall retain ownership of the special sidewalk and other Improvements located m the public pedestrian access easement pursuant to the Contracts. SECTION 5 RIGHT OF ACCESS 5.01 City does not relinquish the right to control the management of' the Project Sites, or the right to enforce all necessary and proper rules for the management and operation of the same. City through its Manager, Transportation and Public Works Director, police and fire personnel, and other designated representatives, has the right at any time to enter any portion of the Project Sites (without causing or constituting a termination of the use or an interference of the use of the Project Sites by Owner) for the purpose of inspecting and maintaining the same and doing any and all activities necessary for the proper conduct and operation of public property; provided this shall not authorize or empower City to direct the activities of Owner or assume liability for Owners activities. 5.02 The City will have the right but not the obligation to make routine inspections of the Project Sites In the event the City observes non-compliance of an area or a condition which poses an immediate threat to life, health, or property, the City shall notify Owner in writing and give a reasonable period of time to correct the area in accordance with Section 2.05 of this Agreement. 5.03 Owner shall inspect the areas described in Section 2 02 and submit an inspection report to the City annually. The purpose of the inspection is to assure safe and proper functioning of the Improvements described in Section 2.02. The inspection shall cover the entire areas described in Section 2.02, and portions thereof which need maintenance or replacement to perform their design function shall be noted in the inspection report along with the corrective actions to be taken. SECTION 6 INDEMNIFICATION 6.01 OWNERS, ITS SUCCESSORS OR ASSIGNS, AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS, VOLUNTEERS, AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) OWNER'S BREACH OF ANY OF THE TERMS OR PROVISIONS Page 3 of 13 OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF OWNER, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO SIDEWALK AND TRAIL CONSTRUCTION AND MAINTENANCE PURSUANT TO THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH OWNER AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LAWS OF TEXAS. 6.02 Owner, its successors or assigns, covenants and agrees that City shall in no way nor under any circumstances be responsible for any property belonging to Owner, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers, which may be stolen, destroyed, or in any way damaged in connection with performance of this Maintenance Agreement, and Owner hereby indemnifies and holds harmless City from and against any and all such claims The City does not guarantee police protection and will not be liable for any loss or damage sustained by Owner, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers on the Project Sites 6.03 It is further agreed that the acceptance of this Release shall not constitute a waiver by the City of Fort Worth of any defense of governmental immunity, where applicable, or any other defense recognized by the Statutes and Court decisions of this State. SECTION 7 INSURANCE 7.01 Owner shall not commence work under this Agreement until it has obtained all the insurance required under the Contracts and the City has approved such insurance. Owner shall be responsible for delivering to the City Owner s certificate of insurance for approval. Subcontractors shall provide to Owner documentation of insurance reasonably equivalent to that required of Owner s General Contractor under the Construction Contract, accordmg to the liability exposures related to the subcontractor's services and/or materials A. Commercial General Liability Insurance: Owner shall procure and maintain during the life of this contract and any extension period, a commercial general liability insurance policy in the amount not less than $1,000,000 covering each occurrence 7.02 1'he insurance specified in 7 01 hereof shall comply with the following requirements: a. The City of Fort Worth, its Officers, Employees, and Volunteers shall be named as an Additional Insured on Owners Insurance Policies. The additional insured status does not apply to Worker's Compensation policies. Page 4 of 13 b. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. c. Each insurance policy shall be endorsed to provide the City a minimum thirty (30) days notice of cancellation, non -renewal, and/or material change in policy terms or coverage. A ten-day notice shall be acceptable in the event of non-payment of premium. d. Wavier of rights of recovery (subrogation) in favor of the City of Fort Worth. e. Except for workers compensation, all insurers must have a minimum rating of A: VIl in the current A. M. Best Key Rating Guide or have reasonably equivalent fmancial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. f. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. g. Unless otherwise stated, all required insurance shall be written on the "occurrence basis" h. The City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City of Fort Worth. The City shall be required to provide prior notice of ninety (90) days. i. Deductible limits, or self -funded retention limits, on each policy must not exceed $10,000.00 per occurrence unless otherwise approved by the City. j. City will not be responsible for the direct payment on insurance premium costs for Owner's insurance. k Owner's insurance policies shall each be endorsed to provide that such insurance is primary protection and any self -funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. 1. While the Agreement is in effect, Owner shall report, in a timely manner, to the City any known loss occurrence that could give rise to a liability claim or lawsuit or which could result in a property loss. m. Upon the request of City, Owner shall provide complete copies of insurance policies required by these contract documents. n. Insurance certificates satisfactory to the City must be received before Owner can begin work. Failure to supply and maintain such insurance shall be a breach of contract. 7.03 The City acknowledges that the insurance described on the Insurance Certificate attached hereto as Exhibit "B" satisfies the insurance requirements of this Maintenance Agreement. SECTION 8 INDEPENDENT CONTRACTOR 8.01 Owner shall perform all work and services hereunder as an independent contractor and not as an officer, agent, servant or employee of the City. Owner shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons Page 5 of 13 performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees and subconsultants (or subcontractors). Nothing herein shall be construed as creating a partnership or joint venture between the City and Owner, its officers, agents, employees and subconsultants (or subcontractors), and doctrine of respondent superior has no application as between the City and Owner. SECTION 9 LICENSES AND PERMITS 9.1 Owner shall comply with all federal, state and local laws, rules and regulations as well as with all regulations, restrictions and requirements of the police, fire and health departments now or hereafter in effect which are applicable to its operations. Owner shall obtain and keep in effect at its own cost and expense all licenses, permits, and taxes incurred or required in connection with this Agreement and its operations hereunder. SECTION 10 LIENS 10.01 Owner its successors or assigns, agrees that it shall do no act nor make any contract that may create or be the foundation for any lien upon or mterest in the City's property, and any such contract or lien attempted to be created shall be void. Should any purported lien on City property be created or filed, Owner, its successors or assigns, at its sole expense, shall liquidate and discharge same within thirty (30) days after notice from City to do so. SECTION 11 TERMINATION AND DEFAULT 11.01 Subject to the provisions of Section 11.02 below, in the event Owner fails to comply with any of the terms and conditions of this Agreement after notice and the passage of the appropriate cure period provided in this Maintenance Agreement, City shall have the right, and without further notice to declare this Maintenance Agreement immediately terminated by written notice to Owner and to enter into and take full possession of the Project Sites save and except such personal property and equipment as may be owned by Owner. In the event of such cancellation of this Agreement by the City, all rights, duties and privileges of Owner hereunder shall cease and terminate. 11.02 Owner shall be notified by written correspondence of Owner's failure to comply with any of the terms and conditions of this Agreement. Owner shall have thirty (30) calendar days from the date of written correspondence to correct deficiencies or, if such deficiencies are not reasonably able to be corrected within thirty (30) calendar days, Owner shall have, within that period, begun work on such corrections and shall diligently purse them to completion. 11.03 Upon termination, the parties shall be released from all obligations contained in this Agreement except for the indemnification requirements found in Section 6 of this Agreement. Page 6 of 13 11.04 Termination notice shall be considered rendered when placed in the United States Postal Service for delivery to the other party in accordance with Section 13. SECTION 12 NON-DISCRIMINATION/DISABILITIES 12.01 Owner, in its maintenance, occupancy, or use of said the Project Sites shall not discriminate against any person or persons because of race, age, gender, religion, color, national origin, sexual orientation or disability. SECTION 13 NOTICES 13.01 Any notice required shall be sufficient if deposited in the U.S. Mail, postage prepaid and addressed to the other party as follows: CITY City of Fort Worth Transportation & Public Works Department George Behmanesh 1000 '1'hrockmorton Fort Worth, Texas 76102 With copy to: City Attorney's Office 1000 Throckmorton Fort Worth, Texas 76102 OWNER Walsh Ranches Limited Partnership G. Malcolm Louden, President Suite 1007 500 West Seventh Street, Unit #27 Fort Worth, Texas 76102-4773 Page 7 of 13 SECTION 14 VENUE AND JURISDICTION 14.01 This Agreement shall be governed by the laws of the State of Texas. Venue for any action brought to interpret or enforce, or arising out of or incident to, the terms of this Agreement shall be in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. SECTION 15 SUBLETTING AND ASSIGNING 15.01 Owner agrees that it will not subcontract or assign all or any part of its rights, privileges or duties hereunder without the prior written consent of the City and any attempted subcontract or assignment of same without such prior consent of the City shall be void except that Owner may, without prior written consent, assign any or all of its rights, privileges or duties hereunder to an affiliate (defined as an entity under common control with Owner) or to an authorized Public Improvement District whose boundaries include the Project Site ("Allowed Assignment") In the event of an Allowed Assignment, Owner will notify the City within thirty (30) days of such assignment. If notice of an Allowed Assignment is not provided within thirty (30) days to the City such assignment shall be void. In the event of an assignment permitted above, Owner shall automatically be released from any further obligation or liability under this Maintenance Agreement Notwithstanding the foregoing, or anything in this Maintenance Agreement to the contrary, it is understood and agreed that Owner will contract or subcontract various parts of its obligations hereunder to other to perform on behalf of Owner, and such contracting or subcontracting is expressly permitted hereunder. 15.02 Subject to the limitations contained herein, the covenants, conditions and agreements made and entered into by the parties hereunder are declared to be for the benefit of and binding on their respective successors, representatives and permitted assigns, if any. SECTION 16 WAIVER, SECTION HEADINGS, AND SEVERABILITY 16.01 It is agreed that in the event any covenant, condition or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall in no way affect any other covenant, condition or provision herein contained, provided however, that the invalidity of any such covenant, condition or provision does not materially prejudice either Owner or City in connection with the rights and obligations contained in the valid covenants, conditions or provisions of this Agreement 16.02. The waiver by the City of any default or breach of a term, covenant or condition of this Agreement shall not be deemed to be a waiver of any other breach of that term, covenant or condition or any other term, covenant or condition of this Agreement, regardless of when the breach occurred. 16.03 The headings in this Agreement are inserted for reference only, and shall not define or limit the provisions hereof. Page 8 of 13 SlifiCTION 17 SL; CCU eSSO R S KW ASSIGNS. 17.01 This Agreement shall be recorded in the Real Property Records of the applicable county and shall be a covenant running with the land binding upon all parties having any right, title or interest in the Property or any part thereof, including their heirs, successors and assigns, and shall inure to the benefit of the owners of the Property and to the City. SECTION 18 ENTIRE UN ISERSTANIING 18.01 This written instrument including all Attachments, Schedules, and Exhibits attached hereto constitutes the entire agreement by the parties hereto concerning tins Agreement and the obligations of the parties and any prior or contemporaneous oral or written agreement that purports to vary from the terms hereof shall be void. This Agreement cannot be modified or amended without the written consent of all the parties hereto and attached and made a part of this Agreement. 18.02 Neither this Agreement nor any provision hereof may be modified except by an instrument in writing, signed by the parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the parties have executed this Agreement in multiples, this day of May, 2012. CETY OF ' I»RT vk7 tffT H By: agovende Fernando Costa Assistant City Manager Approved as to F• By: nd Legality Assistant City Attorney Mary J. Kayse- City Secretary Page 9 of 13 ne *OR jua-icmcIs0' OFFICIAL RECORD CITY SECRETARY FT, WORTH, TX • WALSH RANCHES L!MF A, a Texas limited partnership ARTN RSIMP, BY: Walsh North Star Company, a Texas corporation, General Partner BY: A , ti-Ces„ Lati 'G. Malcolm Louden,`Presideht Page 10 of 13 THE; STATE, OF TFXAS COUNTY OF TARRANT 1114,FORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Fernando Costa, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of the City of Fort Worth, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this , 2012. MANIA S. SANCHEZ MY COMMISSION EXPIRES December 14, 2013 THE STATE; OF THH;XAS C >UNTY OF TARRANT //AC Notary Public in and "for the State of Texas day of BEFORE MF, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared G. MALCOLM LOUDEN, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as President of Walsh North Star Company, a Texas corporation, General Partner to Walsh Ranches Limited Partnership, a Texas limited partnership, as the act and deed of said limited partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 25 day of 1'1(tl,�... , 2012. • • 245744v1 STACEY JANDRUCKO Notary Public STATE OF TEXAS My Comm. Exp. Mar. 26, 2016 I , I ' .111,04111PIN Nofary ublic in and for State of Texas Page 11 of 13 ET J0 ZI 00-ed PLOTTED: Tuesday, May 101, 2012 AT 2;03 PM FILEPATH: G:\ProJuctlorPlannedCommunIty\2001\2001169\PrIvaba Sector\WRP Phase 1\Exhblts' 1AUVfENAINICE AGREB 191TS\TRAIL SYSTEM,dwg V. -4 it< 0 1N31A133IJ9V 3DNVN31NIVW W31SAS 1IV J1 3NI» aNv 9NIN1VM —1 or 1 d1 S1I1 Nl �r PARKER COUNTY TARRANTY COUNTY AL.EDO !SD FORT WORTH ISD PARKER COUNTY TARRANTY COUNTY aWa 1 1 g a I.