HomeMy WebLinkAboutContract 48866_ - — �.
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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no longer in effect;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,
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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
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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."