HomeMy WebLinkAboutContract 32746 CITY :17
CONTRACT NO.
LEASE AGREEMENT
This Lease Agreement is made and entered into between Keller Independent School
District acting by and through 4w;A Fd(,.cr. estde«-f herein designated as "Keller" and the
City of Fort Worth acting herein by and through is Assistant City Manager herein
designated as "City".
WITNESSETH:
WHEREAS, Keller is building new schools on property owned by the District situated in
the 3600 block of Keller Hicks Road in Fort Worth, Texas;
WHEREAS, as part of the construction of the aforementioned schools, Keller is required
to install Off-Site Improvements including the installation of water and sewer mains, a storm
sewer, and roadway improvements to Keller Hicks Road. These improvements are more
specifically described in a Community Facilities Agreement previously executed by and between
the two parties herein;
WHEREAS, City is the owner of the street known as Keller Hicks Road;
WHEREAS, City has agreed to enter into a non-exclusive Lease Agreement with Keller
for the Lease of a portion of Keller Hicks Road in order that Keller may construct the Off-Site
Improvements described above. The location of the Leased Area is described on Exhibit "A"
attached hereto and made a part hereof("Leased Premises").
NOW, THEREFORE, for and in consideration of Keller constructing the
aforementioned Off-Site 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 Keller constructing the Off-Site
Improvements and of the covenants and agreement to be performed by Keller herein set
forth, does hereby grants to Keller a non-exclusive lease of 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 or
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 Keller.
3. Term of Lease. The term of this lease shall be for no less than 18 months commencing on
October 25, 2005 and ending on August 31, 2007.
4. Acceptance of the Leased Premises by Keller. Keller taking of 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) Keller waives any and all defects
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in and to the Leased Premises, its appurtenances, and in all the appurtenances thereto.
Further, Keller takes the Leased Premises and all appurtenances, in "AS IS" condition
without warranty, expressed or implied, on the part of City. City shall not be liable to
Keller, Keller's agents, employees, contractors, invitees, licensees, or guests for any
damage to any person or property due to Keller's actions or Keller's contractor's actions
on the Leased Premises.
5. No Services. City shall not furnish Keller with any utilities, cleaning, lighting, security,
fence, gate or any other items or services for the Leased Premises. Any services or
utilities needed by Keller will be provided by Keller at its sole cost.
6. Road Closures. If Keller requires any road closures or partial road closure in order to
construct the Off-Site Improvements, Keller 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, Keller shall contact
7. Use and occupancy. Keller 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). Keller shall use and occupy the Leased Premises in order to
construct the Off-Site Improvements and for no other purpose. Keller 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 Keller 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, Keller 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 Keller.
7. Assignment and Subletting. Neither party hereto shall assign, sublet or transfer its
interest herein without prior written consent of the other party, and any attempted
assignment, sublicense or transfer of all or any part hereof without such prior written
consent shall be void..
8. Alterations, Additions, and Improvements. Other than Keller constructing the Off-Site
Improvements, which will begin within sixty days or less from execution of this Lease
which City hereby agrees to, Keller 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.
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9. INSURANCE. Keller 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:
A. Commercial General Liability(CGL) Insurance Policy
$1,000,000 each occurrence
$2,000,000 aggregate limit
B. 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.
C. Workers' Compensation Insurance Policy
Statutory limits
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 limits
consistent with statutory benefits outlined in the Texas workers' Compensation
Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) 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
D. POLICY REQUIREMENTS
i. 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.
ii. Forty-five (45) 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 forty-five (45) days prior
written notice has been given to Postal Service."
iii. 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).
10. Bonds: Keller must provide performance and payment bonds covering the Off-Site
Improvements in form acceptable to the City Attorney.
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11. Liens. Keller will not cause or permit any mechanics' liens or other liens to be filed
against City's Property by reason of any work, labor, services, or materials supplied or
claimed to have been supplied to Licensee. If such a mechanic's lien or materialman's
lien is recorded against the City's Property, Keller must either cause it to be removed or,
if Keller in good faith wishes to contest the lien, take timely action to do so, at Keller's
sole expense.
12. No Hazardous Or Toxic Substances. Under no circumstances during the term of this
License shall Keller 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 Property.
13. Default by Keller. If Keller defaults in the performance of any term of this Agreement
City may send Keller a certified letter explaining the deficiency in their performance of
this Lease. Keller shall correct such deficiency.
14. 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 KELLER:
Keller ISD
Assistant Superintendent, Business Operations
350 Keller Parkway
Keller, Texas 76248
Telephone (817) 744-1000
Facsimile: (817) 337-3275
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.
15. Severability. 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
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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.
16. 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.
17. No Third-Party 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.
18. 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 or the United States District Court for the
Northern District of Texas — Fort Worth Division. This Agreement shall be construed in
accordance with the laws of the State of Texas.
19. Independent Contractor. Keller shall perform all work and services hereunder as an
independent contractor, and not as an officer, agent, servant or employee of the City.
Keller shall have exclusive control of, and the exclusive right to control the details of the
work performed for the Off-Site 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 Keller, its officers, agents, employees
and subconsultants (or subcontractors), and doctrine of respondent superior has no
application as between the City and Keller.
20. Compliance With Law. Keller, 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 Keller to any such violations on the part of
Keller, its officers, agents, employees, contractors or subcontractors, then Keller shall
immediately desist from and correct such violation.
21. Governmental Powers. It is understood that by execution of this Agreement, the City
does not waive or surrender any of it governmental powers.
22. Counterparts. This Agreement may be executed in several counterparts, all of which
when taken together shall constitute one and the same agreement.
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23. Entire Agreement. It is expressly agreed by KELLER, 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 first above set forth.
CITY OF FORT WORTH KELLER INDEPENDENT SCHOOL DISTRICT
Assistant kty Man ger
APPROVED AS TO FORM:
Assis ant City ttorney
ATTEST: Contra t Authorization
did, Date
&;a,. City S retary
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COMMUNITY FACILITIES AGREEMENT
THE STATE OF TEXAS § City Secretary
COUNTY OF TARRANT § Contract No.
WHEREAS, Keller Independent School District, hereinafter called "Developer",
desires to make certain improvements to Keller Hicks Road, an addition to the City of
Fort Worth, Texas; and
WHEREAS, the said Developer has requested the City of Fort Worth, a municipal
corporation of Tarrant and Denton Counties, Texas, hereinafter called "City", to do
certain work in connection with said improvements.
NOW, THEREFORE, KNOW ALL BY THESE PRESENTS:
For and in consideration of the covenants and conditions contained herein, the City and
the Developer do hereby agree as follows:
I. General Requirements
A. The Policy for the Installation of Community Facilities ("Policy")
dated March 2001, approved by the City Council of the City of Fort
Worth, is hereby incorporated into this Community Facilities Contract
as if copy herein verbatim. Developer agrees to comply with all
provisions of said Policy in the performance of its duties and
obligations hereunder.
B. The requirements of the Policy shall govern this Community Facilities
Agreement, provided, however, that any conflict between the terms of
this Community Facilities Agreement and the Policy shall be resolved
in favor of this Agreement.
C. Developer shall provide financial security in conformance with
paragraph 6, Section II,of the Policy.
D. The Developer shall award all contracts for the construction of
community facilities in accordance with Section H, paragraph 7 of the
Policy.
E. The contracts for the construction of the public infrastructure shall be
administered in conformance with paragraph 8, Section H, of the
Policy. _ ,, o- N^o
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KELLER-1 1 JsLa `-�:+rV
F. The Developer further covenants and agrees to, and by these presents
does hereby, fully indemnify, hold harmless and defend the City, its
officers, agents and employees from all suits, actions or claims of any
character, whether real or asserted, brought for or on account of any
injuries or damages sustained by any persons (including death) or to
any property, resulting from or in connection with the construction,
design, performance or completion of any work to be performed by
said Developer, his contractors, subcontractors, officers, agents or
employees, or in consequence of any failure to properly safeguard the
work, or on account of any act, intentional or otherwise, neglect or
misconduct of said DEVELOPER, his contractors, sub-contractors,
officers, agents or employees, whether or not such injuries, death or
damages are caused in whole or in part, by the alleged nezUrence of
the City of Fort Worth, its officers, servants, or employees
G. Developer shall install or adjust all of the required utilities to serve the
development or to construct the improvements required herein.
H. In the event that City participation exceeds $25,000, Developer agrees
that no street construction or storm drainage will begin prior to City
Council approval of this Community Facilities Agreement. (Article
104.100, Ordinance 7234).
I. Developer agrees that no lot shall be occupied under a certificate of
occupancy until the improvements required herein have been
constructed(Article 104.100, Ordinance 7234).
J. Developer hereby releases and agrees to indemnify and hold the City
harmless for any inadequacies in the preliminary plans, specifications
and cost estimates supplied by the Developer for this contract.
K. Developer agrees to provide, at its expense, all necessary rights of way
and easements across property owned by Developer required to
construct current and future improvements provided for in this
agreement.
KELLER-1 2
II U ,7
L. Developer agrees to construct proposed improvements as shown on the
exhibits attached hereto. The following exhibits are made a part
hereof: Water (A)None; Sewer (A-1) one, Paving (B)Attached
Storm Drain(B-1)Attached; Street Lights and Signs (C)Attached.
M. City shall not be responsible for any costs that may be incurred by
Developer in the relocation of any utilities that are or may be in
conflict with any of the community facilities to be installed hereunder.
II. Street and Storm Drain Facilities
A. The Developer(s) agree to install or to cause to have installed, the street,
storm drainage, street lighting, street name sign and other community
facilities improvements shown as "current improvements" on the attached
Exhibits B, B 1, and C.
B. As shown below in the "Summary of Cost for Street and Storm Drain
Facilities", the Developer shall fund its share of "current improvements"
and shall pay to the City for its share of the cost of street, storm drainage,
street lighting, street name signs as shown on the attached Exhibits B, B i,
and C. The estimated total cost of current improvements and related
support services specified in this agreement, including design,
construction and inspection is estimated to $1,025,058.40.
KELLER—1 3
SUMMARY OF
COST
Item Developer City Cost Total Cost
Cost
A. Construction
1. Paving Improvements $ 642,250.00 $ 642,250.00
2. Storm Drainage $ 326,460.00 $ - $ 326,460.00
3. Street Lights $ 17,600.00 $ - $ 17,600.00
4. Street Name Signs $ - $ - $ -
5. Signal Inspection $ 2,800.00 $ 2,800.00
B. Engineering Design $ - $ - $ -
C. Construction Engineering
and Mana ement by DOE 4% $ 35,948.40 $ - $ 35,948.40
TOTALS $ 1,025,058.40 $ - $ 1,025,058.40
Notes:
1.All Preliminary Plats filed after July 2000 will require sidewalks on all streets.
The developer is responsible for installation of sidewalk and a separate financial
guarantee is required in the form of a bond or check for the cost of the sidewalk.
2. Developer's column for Item C represents four percent(4%) cost for construction
inspection fees and materials testing. The City will pay additional inspection fee over
4%.
3.City not preparing plans and specifications.
KELLER-1 4 �,
IN TESTIMONY WHEREOF, the City of Fort Worth has caused this instrument to be
executed in quadruplicate in its name and on its behalf by its Assistant City Manager,
attested by its City Secretary,with the corporate seal of the City affixed, and said Developer
has executed this instrument in triplicate, at Fort Worth,Texas this the 29th day of July
2005.
Approval Recommended:
Transportation and Public Works
Department
Robert Goode, P. E.
Director
City of Fort Worth
Marc Ott
Assistant City Manager
ATTEST:
Marty Hendrix
City Secretary
Approved as to Form:
Assistant City Attorney
ATTEST: DEVELOP
By
Corporate Secretary Kent Morrison,Chief Financial Officer
Keller Independent School District
RECEIVED
KELLER-1 5
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 11/15/2005
DATE: Tuesday, November 15, 2005
LOG NAME: 12KELLER HICKS REFERENCE NO.: **C-21145
SUBJECT:
Authorization to Enter into a Non-Exclusive Lease Agreement with the Keller Independent School
District
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into a non-exclusive lease
agreement with Keller Independent School District (KISD) for the installation of water and sewer mains,
storm sewer and roadway improvements in Keller-Hicks Road.
DISCUSSION:
KISD is building new schools on property owned by the District situated in the 3600 block of Keller-Hicks
Road. As a part of the construction to serve its schools, Keller must install off-site improvements including
the installation of water and sewer mains, a storm sewer and roadway improvements to Keller-Hicks Road.
A new law passed in the last legislative session (HB 1826) that provides that in order for a school district to
make improvements on property the school district must own or lease the property. Keller has requested a
non-exclusive lease of a portion of Keller-Hicks Road in order to make the improvements.
Staff recommends that the City enter into a non-exclusive Lease Agreement for a term beginning October
5, 2005 and ending August 1, 2007, to make the improvements in compliance with state law. At the
termination of the lease, all improvements made by the District will be owned by the City.
This project is located in COUNCIL DISTRICT 4.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no effect on city funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office b Richard Zavala (Acting) (6222)
Originating Department Head: David Yett (7623)
Additional Information Contact: David Yett (7623)
Logname: 03HRS01 Page 1 of 1