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HomeMy WebLinkAboutContract 43024CITY SECRETARY ! CONTRACT NO. 4 d a ENCROACHMENT AGREEMENT STATE OF TEXAS § COUNTY OF TARRANT § THIS AGREEMENT is made and entered into by and between the City of Fort Worth, a municipal corporation of Tarrant County, Texas, acting herein by and through its duly authorized Planning and Development Department Director, hereinafter referred to as the "City", and Eagle Mountain Saginaw Independent School District, acting herein by and through its duly authorized Board of Trustees, Dick Elkins, President hereinafter referred to as "Grantee ", Owner of the property located at 5201 Educators Way, Fort Worth, TX 76179 ( "Property ") WITNESSETH: 1. For and in consideration of the payment by Grantee of the fee set out below and the true and faithful performance of the mutual covenants herein contained, City hereby grants to Grantee permission to construct/ install and /or allow to remain, Improvement(s) ( "Improvement ") that encroaches upon, uses and /or occupies portions of the space under, on and /or above the streets, alleys, sidewalks and other public rights -of -way, such Improvement(s) are described as follows: OFFICIAL RECORD CITY SRrRPTADv FT, WORTH, TX Modular Block Retaining Wall with chain link fence adjacent to property line ( "Retaining Wall ") The location and description of said Improvement and the encroachment is more particularly described in Exhibit "A" and Exhibit "B ", attached hereto, incorporated herein and made a part hereof for all purposes. 2. All construction, maintenance and operation in connection with such Improvement, use and occupancy shall be performed in strict compliance with this Agreement and the Charter, Ordinances and Codes of the City and in accordance with the directions of the Director of Transportation and Public Works of City, or his duly authorized representative. All plans and specifications thereof shall be subject to the prior written approval of the Director of Transportation and Public Works, or his duly authorized representative, but such approval shall not relieve Grantee of responsibility and liability for concept, design and computation in preparation of such plans and specifications. 3. Upon completion of construction and installation of said Improvement and thereafter, there shall be no encroachments in, under, on or above the surface area of the streets, alleys, sidewalks and other public rights -of -way involved, except as described herein and shown on the hereinabove referred to Exhibit "A" and Exhibit "B ". 4. Grantee, at no expense to the City, shall remove and reinstall all or portions of the Retaining Wall for the relocation and installation of any existing or future utilities affected by such encroachment use and occupancy. 5. City may enter and utilize the referenced areas at any time for the purpose of installing or maintaining improvements necessary for the health, safety and welfare of the public or for any other public purpose. In this regard, Grantee and City understand and agree that City shall bear no responsibility or liability for damage or disruption of improvements installed by Grantee or its successors, but City will reasonably cooperate with Grantee to minimize such damage. Cd In order to defray all costs of inspection and supervision which City has incurred or will incur as a result of the construction, maintenance, inspection or management of the encroachments and uses provided for by this Agreement, Grantee agrees to pay to City at the time this Agreement is executed a fee in the sum of Two Hundred Seventy Five Dollars ($275.00). 7. The term of this Agreement shall be for thirty years, commencing on the date this Agreement is executed by the City of Fort Worth. The Agreement shall automatically renew without any action taken by City or Grantee for a new term of 30 years at the expiration of each original or renewal term, unless the parties mutually agree at any time to terminate the Agreement. F-11 Upon termination of this Agreement, Grantee shall, at the option of City and at no expense to City, restore the public right -of -way and remove the Improvement encroaching into the public right -of -way, to a condition acceptable to the Director of Transportation and Public Works, or his duly authorized representative, and in accordance with then existing City specifications. a] It is further understood and agreed upon between the parties hereto that the public rights -of -way, alleys, sidewalks ( "public right -of- way ") to be used and encroached upon as described herein, are held by City as trustee for the public; that City exercises such powers over the public right -of way as have been delegated to it by the Constitution of the State of Texas or by the Legislature; and that City cannot contract away its duty and its legislative power to control the public right -of -way for the use and benefit of the public. It is likewise understood and agreed by the parties that the Retaining Wall serves to benefit the public as part of a public educational facility operated by Grantee. It is accordingly agreed that if the governing body of City at any time during the term hereof determines it has need to use, cause, or permit the right of way to be used for any other public purpose, including but not being limited to underground, surface of overhead communication, drainage, sanitary sewerage, transmission of natural or electricity, or any other public purpose, whether presently contemplated or not, that the parties to this Agreement shall attempt to mutually resolve any issues related to the effect of the encroachment on the new proposed use of the right of way. If agreement cannot be reached between the parties following reasonable efforts, City may terminate this Agreement with 60 days written notice to Grantee. 10. Grantee understands and agrees that the granting of any encroachment hereunder is not meant to convey to Grantee any right to use or occupy property in which a third party may have an interest, and Grantee agrees that it will obtain all necessary permission before occupying such property. 11. Grantee agrees to comply fully with all applicable federal, state and local laws, statutes, ordinances, codes or regulations in connection with the construction, operation and maintenance of said Improvement, encroachment and uses. 12. Grantee covenants and agrees that it shall operate hereunder as an independent contractor as to all rights and privileges granted hereunder and not as an officer, agent, servant or employee of City and Grantee shall have exclusive control of and the exclusive right to control the details of its operations, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. The doctrine of respondeat superior shall not apply as between City and Grantee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Grantee. No provision of this Agreement shall waive or otherwise affect any governmental immunities possessed by the parties. 13. Grantee agrees to deposit with the City when this Agreement is executed a sufficient sum of money to be used to pay necessary fees to record this Consent Agreement in its entirety in the deed records of Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth, Texas 14. In any action brought by the parties for the enforcement of this Agreement, the prevailing party shall be entitled to recover interest and reasonable attorney's fees. 15. Grantee covenants and agrees that it will not assign all or any of its rights, privileges or duties under this contract without the prior written approval of the City Manager or designee. Any attempted assignment without prior written approval will be void. 16. THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 17. This Agreement shall be binding upon the parties hereto, their successors and assigns. EXECUTED this _)_)�day of _ i(YlCr0^ , 20 lZ. City Grantee City of Fort Worth Eagle Mountain - Saginaw Independent School District 1 Byfle Raarw d Director Planning and Development ATTEST: Ma p 0 O �o 0 o F �0 o o Go_ _o° <Y F B Name: Dick Elkins Title: President, Board of Trustees Approved As To Form And Legality 40 Assistant City Attorney FOFFICIAL RECOR ; Q CITY SECRETARY FT WORTH, 'rx F B Name: Dick Elkins Title: President, Board of Trustees Approved As To Form And Legality 40 Assistant City Attorney FOFFICIAL RECOR ; Q CITY SECRETARY FT WORTH, 'rx STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Randle Harwood, 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. --� L GIV)N UNDER MY HAND AND SEAL OF OFFICE this day of A(I (c rC, , 20_LL—. IRMA SAENZ Notary Pubk STATE OF TEXAS My Comm, Exp. Jan. 28, 2016 "zt Notary Public in and for t State of Texas OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Dick Elkins, President, Board of Trustees, 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 Eagle Mountain - Saginaw Independent School District and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of Not Public in and for the S of Texas Not 16CwmFxp-07-22-1$1 Jackie D. Nethery OFFICIAL RECORD CITY SECRETARY FT. VYORTH•. 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