HomeMy WebLinkAboutContract 41676 (2)CITY SECRETARY
CONTRACT NO.
LEASE AGREEMENT
This Lease Agreement is made and entered into between Eagle Mountain -Saginaw
Independent School District, acting by and through its Board of Trustees, herein designated as
"EM-SISD", and the City of Fort Worth, herein designated as "City".
WITNESS ETH:
WHEREAS, EM-SISD is construction a new High School adjacent to Marine Creek
Parkway and N.W. College Drive in the City of Fort Worth;
WHEREAS, as part of the construction of the new High School, EM-SISD is required to
install paving, street lights, traffic signal, and storm drain improvements ("Improvements") in
public right-of-way owned by the City adjacent to its property;
WHEREAS, City has agreed to enter into a non-exclusive Lease Agreement with Eagle
Mountain -Saginaw ISD for the Lease of a portion of the right-of-way in and along Marine Creek
Parkway and N.W. College Drive in order that EM-SISD may construct the Improvements, such
improvements being for the benefit of EM-SISD and City. The location of the leased area is
shown in Exhibits "A" and "B" attached hereto and made a part hereof ("Leased Premises").
NOW, THEREFORE, for and in consideration of EM-SISD constructing the
Improvements and other good and valuable consideration paid, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Leased Premises. City, in consideration of EM-SISD constructing the Improvements and
of the covenants and agreement to be performed by EM-SISD herein set forth, does
hereby grants to EM-SISD a non-exclusive lease of and temporary construction easement
in the Leased Premises.
2. Non -Exclusivity. This Lease and other rights and benefits herein created are not exclusive,
and City hereby reserves the right to grant such other leases, licenses, easements, rights,
benefits, or privileges to such persons and for such purposes as City in its discretion may
elect, so long as such purposes do not materially interfere with the rights and benefits
granted herein to EM-SISD.
3. Term of Lease. The term of this lease shall be for 180 days from its execution or until
completion of the Improvements and acceptance of same by City whichever occurs first.
If the Improvements are not completed and accepted within the initial 30 day period, this
lease shall automatically renew for additional 30 day periods until the Improvements are
complete and accepted.
4. Acceptance of the Leased Premises by EM-SISD. EM-SISD taking possession of the
Leased Premises shall be conclusive evidence that (a) the Leased Premises are suitable for
the purposes and uses for which same are leased; and (b) EM-SISD waives any and all
defects in and to the Leased Premises, its appurtenances, and in all the appurtenances
thereto. Further, EM-SISD takes the Leased Premises and all appurtenances in "AS 1S"
OFFICIAL RECORD
CITY SECRETARY
FT, WORTH, Telf
condition without warranty expressed or implied, on the part of City. City shall not be
liable to EM-SISD, EM-SISD s agents, employees contractors, invitees, licensees or
guests for any damage to any person or property due to EM-SISD's actions or EM-SISD's
contractor's actions on the Leased Premises.
5. Contractor Indemnification for Environmental Requirements EM-SISD COVENANTS
AND AGREES, AT ITS EXPENSE, TO INCLUDE IN ITS CONTRACTS WITH
ITS CONTRACTORS AND/OR AGENTS THAT WILL ENTER AND/OR
PERFORM WORK ON THE LEASED PREMISES THAT SAID CONTRACTORS
AND/OR AGENS WILL PAY, INDEMNIFY, DEFEND AND SAVE CITY, ITS
MEMBERS, DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES
HARMLESS AGAINST AND FROM, ANY AND ALL CLAIMS BY OR ON
BEHALF OF ANY PERSON, FIRM, CORPORATION, OR GOVERNMENTAL
AUTHORITY ARISING FROM THE OCCUPATION, USE, OR POSSESSION OF
THE LEASED PREMISES, INCLUDING ANY LIABILITY FOR VIOLATION OF
CONDITIONS, RESTRICTIONS, LAWS, ORDINANCES, OR REGULATIONS
AFFECTING THE LEASED PREMISES OR THE OWNERSHIP OR
OCCUPANCY OR USE THEREOF (TO THE EXTENT SUCH VIOLATIONS DID
NOT EXIST PRIOR TO THE COMMENCEMENT OF THE TERM). EM-SISD'S
CONTRACTORS AND/OR AGENTS SHALL RELEASE, INDEMNIFY, DEFEND,
REIMBURSE, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS,
EMPLOYEES AND VOLUNTEERS AGAINST ANY AND ALL
ENVIRONMENTAL DAMAGES AND THE VIOLATION OF ANY AND ALL
ENVIRONMENTAL REQUIREMENTS RESULTING FROM THE USE OF THE
LEASED PREMISES BY EM-SISD OR ITS CONTRACTORS AND/OR AGENTS
DURING THE TERM OF THIS LEASE. EM-SISD OR ITS CONTRACTORS OR
AGENTS ARE EXPRESSLY NOT LIABLE FOR AND DO NOT INDEMNIFY
FOR ANY ENVIRONMENTAL DAMAGES OR THE VIOLATION OF SAID
ENVIRONMENTAL REQUIREMENTS WHICH HAVE OCCURRED PRIOR TO
THE DATE OF THE TERM.
6. No Services. City shall not furnish EM-SISD with any utilities, cleaning, lighting,
security, fence, gate or any other items or services for the Leased Premises. Any services
or utilities needed by EM-SISD will be provided by EM-SISD at its sole cost.
7. Road Closures. If EM-SISD requires any road closures or partial road closure in order to
construct the Improvements, EM-SISD agrees to coordinate any road closures or partial
road closures with City and obtain City's consent before any closure. To obtain City's
consent, EM-SISD shall contact the City.
8. Use and Occupancy. EM-SISD shall, at its expense, use and maintain the Leased
Premises in a neat, clean, careful, safe, and proper manner and comply with all applicable
laws, ordinances, orders, rules and regulations of all governmental bodies (state, county,
federal, and municipal). EM-SISD shall use and occupy the Leased Premises in order to
construct the Improvements and for no other purpose. EM-SISD agrees not to use or to
allow or permit the Leased Premises to be used for any purposes(s) prohibited by any law
of the United States or the State of Texas or by any ordinance of the City of Fort Worth;
and EM-SISD agrees not to commit waste or permit waste to be committed or to allow, or
permit any nuisance on or in the Leased Premises. At the termination of this lease,
whether by lapse of time or otherwise, EM-SISD shall deliver the Leased Premises to City
in as good condition as the same was as of the date of the taking of possession thereof by
EM-SISD
Assignment and Subletting. Neither party hereto shall assign, sublet or transfer its
interest herein without prior wntten consent of the other party, and any attempted
assignment, sublicense or transfer of all or any part hereof without such prior wntten
consent shall be void.
10. Alterations. Additions. and Improvements. Other than EM-SISD constructing the
Improvements, EM-SISD shall make no alterations in, or additions to, the Leased
Premises without the prior written consent of City. All alterations, additions and
improvements made to or fixtures or other improvements placed in or upon the Leased
Premises shall be deemed a part of the Leased Premises and the property of City, at the
end of the term of the Lease. All such alterations, additions, improvements, and fixtures
shall remain upon and be surrendered with the Leased Premises as a part thereof at the
termination of this Lease.
11. Insurance. EM-SISD shall not enter the Leased Premises and commence construction of
the Improvements until its contractors have obtained the following insurance coverage and
shown proof of such coverage to City:
Commercial General Liability (CGL) Insurance Policy
$1,000,000 each occurrence
$2,000,000 aggregate limit
Automobile Liability Insurance Policy
$1,000,000 each accident on a combined single limit basis
or
$250,000 Property Damage
$500,000 Bodily Injury per person per occurrence
A commercial business policy shall provide coverage on "Any Auto", defined as
autos owned, hired and non -owned
Workers' Compensation Insurance Policy
Minimum limits of at least $1 million
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease - per each employee
$500,000 Disease - policy limit
This coverage may be written as follows:
Workers' Compensation and Employers' Liability coverage with minimum limits of at
least $1 million and consistent with statutory benefits outlined in the Texas Workers'
Compensation Act (Sec. 401.001 et seq. Texas Labor Code) and minimum policy limits
for Employers Liability of $100,000 each accident/occurrence, $500,000 bodily injury
disease policy limit and $100,000 per disease per employee.
City, its Officers, Employees and Volunteers shall be named as an Additional Insured.
Exception: the additional insured status does not apply to Workers' Compensation
policies. Thirty (30) days notice of cancellation or non -renewal: The following clause is
required: "This insurance shall not be canceled, limited in scope or coverage cancelled or
non -renewed, until after thirty (30) days prior written notice has been given to the City of
Fort Worth by U S. mail." The insurers for all policies must be licensed/approved to do
business in the State of Texas and have a minimum rating of A: VII in the current A. M.
Best Key Rating Guide or have reasonably equivalent financial strength and solvency to
the satisfaction of City).
11 Bonds: EM-SISD must provide performance and payment bonds covering the
Improvements, in form acceptable to the City Attorney.
12. Liens. EM-SISD will not cause or permit any mechanics' liens or other liens to be filed
against the Leased Premises by reason of any work labor, services, or materials supplied
or claimed to have been supplied. If such a mechanic s lien or materialman's lien is
recorded against the Leased Premises, EM-SISD must either cause it to be removed or, if
EM-SISD in good faith wishes to contest the lien, take timely action to do so, at EM-
SISD's sole expense.
13. No Hazardous Or Toxic Substances. Under no circumstances during the term of this
License shall EM-SISD use or cause to be used or any hazardous or toxic substances or
materials, or store or dispose of any such substances or materials on the Leased Premises.
14. Default by EM-SISD. If EM-SISD defaults in the performance of any term of this
Agreement, City may send EM-SISD a certified letter explaining the deficiency in their
performance of this Lease. EM-SISD shall correct such deficiency.
15. Notice. All notices, requests, and other communication under this Lease shall be in writing
and shall be delivered in person or sent by certified mail, return receipt requested,
addressed as follows:
If intended for CITY:
City Manager
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
Telephone (817) 392-6111
Facsimile: (817) 392-6134
E-Mail:
If intended for EM-SISD:
Dr Jim Chadwell
Eagle Mountain -Saginaw Independent School District
1200 Old Decatur Road
Fort Worth, TX 76179 USA
Phone: (817) 232-0880
Fax: (817) 232-3596
or at such other address, and to the attention of such other person, as the parties shall give
notice as herein provided. All such notices, requests and other communications shall be
deemed to have been sufficiently given for all purposes hereof, whether actually received
or not, upon deposit of both the original and copy in a post office or official depository of
the United States Postal Service.
16. Severabilitv. The provisions of this Agreement are severable, and if any word phrase,
clause, sentence paragraph, section or other part of this Agreement 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 word, phrase, clause, sentence, paragraph, section
or other part of this Agreement to other persons or circumstances shall not be affected
thereby and this Agreement shall be construed as if such invalid or unconstitutional
portion had never been contained therein.
17. Contract Construction. The parties acknowledge that each party and, if it so chooses, its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party
must not be employed in the interpretation of this Agreement or any amendments or
exhibits hereto.
18. No Third-Partv Beneficiaries. This Agreement shall inure only to the benefit of the parties
hereto and third persons not privy hereto shall not, in any form or manner, be considered a
third party beneficiary of this Agreement. Each party hereto shall be solely responsible for
the fulfillment of its own contracts or commitments.
19. Venue And Jurisdiction. If any action, whether real or asserted, at law or in equity, arises
on the basis of any provision of this Agreement, venue for such action shall lie in state
courts located in Tarrant County Texas. This Agreement shall be construed in accordance
with the laws of the State of Texas.
20. Independent Contractor. EM-SISD shall perform all work and services hereunder,
through its contractors and subcontractors as an independent contractor, and not as an
officer agent, servant or employee of the City EM-SISD's contractors and
subcontractors shall have exclusive control of, and the exclusive right to control the details
of the work performed for the Improvements, and all persons 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 EM-SISD, its officers, agents,
employees, and subconsultants (or subcontractors), and doctrine of respondent superior
has no application as between the City and EM-SISD.
21. Comoliance With Law. EM-SISD, its officers, agents, employees, contractors and
subcontractors, shall abide by and comply with all laws, federal, state and local, including
the Charter and all ordinances, rules and regulations of the City. It is agreed and
understood that, if City calls the attention of EM-SISD to any such violations on the part
of EM-SISD, its officers, agents, employees, contractors or subcontractors, then EM-SISD
shall immediately desist from and correct such violation.
22. Governmental Powers. It is understood that by execution of this Agreement, neither the
City or EM-SISD do not waive or surrender any of their governmental powers or
immunities.
23. Counterparts. This Agreement may be executed in several counterparts, all of which when
taken together shall constitute one and the same agreement.
24. Entire Agreement. It is expressly agreed by EM-SISD. as a material consideration for
the execution of this Lease, that there are and were no verbal representations,
understandings, stipulations, agreements, or promises pertaining thereto not incorporated
in writing herein, and it is likewise agreed that this Lease shall not be altered, waived,
amended, modified, or extended otherwise than as provided herein, except same may be
done in writing signed by each of the parties hereto.
In witness whereof, the parties hereto have caused this Lease to be executed as the day and
year set forth below, and to be effective from the latter of those dates.
CITY OF FORT WORTH
�GL
Assistant City Manager
Date:�,6a�
PRO ED AS TO FORM:
J`
Assistant City Attorney
City Secretary
EAGLE MOUNTAIN-SAGINAW INDEPENDENT
SCH��DS1T
Printed Name: Dick Elkins
Title: Board President
Date: February 28, 2011
C a4
Contract Authorization.
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Page 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 4/5/2011
DATE: Tuesday, April 05, 2011
LOG NAME: 12EMSISD032011
SUBJECT:
REFERENCE NO.: **C-24807
Authorize Non -Exclusive Lease Agreement with the Eagle Mountain -Saginaw Independent School District
to Accommodate the Installation of Community Facilities Required by the Construction of a New High
School (COUNCIL DISTRICT 7)
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into a non-exclusive lease
agreement with Eagle Mountain -Saginaw Independent School District for a portion of Marine Creek
Parkway and N.W. College Drive (the leased areas more particularly reflected in Exhibits A and B hereto)
adjacent to Eagle Mountain Saginaw Independent School District property to accommodate the
installation of community facilities required by the construction of a new Eagle Mountain -Saginaw
Independent School District high school.
DISCUSSION:
Eagle Mountain -Saginaw Independent School District, (EM-SISD) is building a new high school in the City
of Fort Worth EM-SISD must install community facilities in and around portions of Marine Creek Parkway
and N W. College Drive in the form of paving, street lights, traffic signal and storm drainage improvements
in the City of Fort Worth to serve the new school. State law requires that a school district can only make
improvements on property the school district owns or leases EM-SISD has requested a non-exclusive
lease of the aforementioned City property in order to make the improvements necessitated by its
construction of the new high school.
Staff recommends that the City enter into a non-exclusive lease agreement for a term beginning upon
execution and terminating when the improvements are completed and accepted by the City. At the
termination of the lease, all improvements made by EM-SISD will be owned by the City.
This project is located in COUNCIL DISTRICT 7.
FISCAL INFORMATION / CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on city
funds.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
CERTIFICATIONS:
Submitted for City Manaaer's Office bv:
Fernando Costa (7504)
http://apps.cfwnet org/ecouncil/printmc.asp?id=15013&print=true&DocType=Preview 4/6/2011
Page 2 of 2
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
1. Exhibit A. PDF (Public)
2. Exhibit B.PDF (Public)
Sarah Fullenwider (8006)
Doug Black (7615)
http://apps.cfwnet.org/ecouncil/printmc.asp?id=15013&print=true&DocType=Preview 4/6/2011