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HomeMy WebLinkAboutContract 45445 t CONTRACT RIGHT OF WAY ENCROACHMENT A EMENT (COMMERCIAL) 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 a.ruthon*zed City Manager or its duly authorized Assistant City Manager er r Planning d Development Department Director, hereinafter referred to as the "City"', and "W TOO Realty, a Texas limited liability company, acting by and th ro ugh Frank Kent Motor Company, a Texas corporation'. its Sole Member , acting herein by and through its duly authorized William P. Churchill, its President hereinafter referred to as "Licensee". Owner of the property located at 110'1 W Magnolia Fort Worth TX 76104 4 ("Property").. AGREEMENT For and in consideration of the payment by Licensee of the fee set out below and the true and faithful performance of the mutual covenants herein contained, City, hereby grants to Licensee permission to construct install and/or allow to remain, Impro ement 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,.- dew steel awning equating 8'8'sqft over the property hne The location and description of said Improvement and the enc roachment s more particularly described in Exhibit "A", 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 erformed in strict compliance with this OFFICIAL RECO CITY SECRETARY RECEIVED 2012 ROB Encroachment Agreement-Cora erffe WORTH,TX Page I of 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 Licensee 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 enc,roachments, in, under, on or above the surface area of the I streets,, alleys, sidewalks and other public, rights-of-way involved, except as described herein and shown on the hereinabove referred to Exhibit ''A". 4, Licensee, at no expense to the City, shall make proper provisions for the relocation and installation of any existing or future utilities affected by such encroachment use and occupancy, including the securing of approval and consent from the utility companies and the appropriate agencies of the State and its political subdivisions. In the event that any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned by, constructed by or on behalf of the public or at public expense is made more costly by virtue of the construction.) maintenance or existence of such encroachment and use, Licensee shall pay to City an additional amount equal to such additional cost, as determined by the Director of Transportation and Public Works of the City, or his duly authorized representative. 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 and agrees public or for any other plubilic purpose. In this regard Licensee understands, 'that, City shall bear no responsibility or liability for damage or disruption of 2012 ROW Encroachment Agreement-Commercial Page 2 of 101 improvements installed by Licensee or its successors, but City will make reasonable efforts to minimize such damage. 6. In order to defray all costs of inspection and supervision which City has mcurred or will incur as a result of the construction, maintenance, inspection or management of the encroachments and uses provided for by this Agreement, Licensee agrees to pay to City at the time this Agreement is requested an application, fee in the sum of Two Hundred and Seventy Five Dollars ($275.00)., Upon execution of this Agreement and annually thereafter, Licensee agrees to pay a fee 'in the amount of$.56 per square/linear foot of the encroachment area. 7, The to of this Agreement shall be for thirty (30) years, commencing on the date this Agreement is executed by the City of Fort Worth. Provided however, this Agreement shall terminate upon the non-compliance of any of the terms of this Agreement by the Licensee. City shall notify Licensee of the non-,compliance and if not cured within thirty days this Agreement shall be deemed terminated. 8. Upon termination of this Agreement, Licensee 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. It is understood and agreed to by Licensee that if this Agreement terminates and Licensee falls to remove the Improvement, Owner hereby gives City permission to remove the Irnrovernent and any supporting, structures and assess a lien on the Property for the costs expended by the City to remove such Improvement. 9. 2 012 ROW Encroachment Agreement-Commercial Page 3 of 10 It i's 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, a 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 accordingly agreed that if the governing body of City may at any time during the to hereof'deten-ni.ne in its sole discretion to use or 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 this Agreement shall automatically terminate. 10. Licensee agrees and acknowledges, that this Agreement is solely for the purpose of permitting Licensee to construct, maintain and locate the Improvements over or within the described public right of way and is not a conveyance of any right,, title or interest in or to the public right of way nor is it meant to convey any right to use or occupy property in which a third party may have an interest. Licensee agrees that it will obtain all necessary permission before occupying such property. 11. Licensee 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. Licensee agrees, to pay promptly when due all fees, taxes or rentals provided for by this Agreement or by any federal, state or local statute, law or regulation. 13. 20 12 ROW Encroachment Agreement-Commercial Page 4 of 10 Licensee 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 Licensee 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, se,ry ts an employees, contractors., subcontractors, licensees, and invitees. The doctrine of res,p and eat superior shall not apply as between City and Licensee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensee. I . LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR, PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF SAID, IMPROVEMENT AND ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES OF 'THE CITY; AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. LICENSEE, SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL, INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF: LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, 2 012 ROW encroach,Went Agreement-Commercial Page 5 of 101 CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. 1-5. While this, Agreement is in effect, Licensee agrees to furnish City with a, Certificate of Insurancel, naming City as certificate holder, as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the proposed use and occupancy of public property as located and described in Exhibit "A". The amounts of such insurance shall be not less than the following.- $1,000,000 Commercial General Liability with the understanding, of and agreement by Licensee that such insurance amounts shall be revised upward at City's option and that Licensee shall so revise such amounts immediately following notice to Licensee of such requirement. Such insurance policy shall provide that it cannot be canceled or amended without at least ten (10) days prior written notice to the Building Official of the City of Fort Worth. A copy of' such Certificate of Insurance is attached as attached as Exhibit 11131'. Licensee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement. Licensee agrees, binds and obligates itself, its successors and assigns, to maintain and keep in force such public liability insurance at all times during the to of this Agreement and until the removal of'all encroachments and -the cleaning and restoration of the city streets. All insurance coverage required herein shall include coverage of all Liic�ens,ees,' contractors. M. Licensee 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 2 0,12 ROW Encroachment Agreernent-Commercial Page 61 of 10 recorded, the original shall be returned to the City Secretary of the City of Fort Worth, Texas. 170 In any action brought by the City for the enforcement of the obligations of Licenseel City shall be entitled to recover interest and reasonable attorney's fees. 18. Licensee covenants and agrees that it will not assign all or any of its rights, 0 p 1' deges, or duties, under is contract wi I �r vi er th* thout the pr*or written approval of the City Manager or designee. Any attempted assignment without prior written approval will be col ol . 19. THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION CONTAINED IN PARAGRAPH 8 SHALL SURVIVE, THE TERMINATION OF THIS; AGREEMENT. 200, This Agreement shall be binding upon the parties hereto, their successors and assigns. EXECUTED, this 4_day of 120 rj 20!12 ROW Encroachment Agreement-Commercial Page 7 of 10 4"9 C,Ity Licensee City offort Worth CW TOO Realty, L By : Frank Kent Motor Company Its Sole Member 1% Randle Harwoo ' Name William P. Churchill Director Title: President Planning and Development ATTEST: Approved As To Form and Legal ity City Secreiar� si Asstant City Attorney NO M&C RJ4 QUIREID OFFICIAL RIECORD CITY SECRETARY FT,1 WORTHj TX 2012 ROW Encroachment Agreement-Commercial Page 8 of 10 STATE, OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority., a Notary Public in and for the State of Texas,1 oin 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/shie 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. EN ! NDiER AND AND SEAL OF OFFICE thiii day olf 20 own N! All CAM Rill as Notalry rn A'S Aptil ROOM lip Notary Public in and for the State of Texas 2012 ROW Encroachment Agreement-Comi-nerciall, Page 9 of 10 XN STATE OF TEXAS § COLTNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Will Churchill, President, 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 CW TOO Realty, LLB", and in the capacity therein stated., GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 20j# DeWoh Kay Cdd C' COMM00n Exom 5 NOF Notary Public in and for the State of Texas 2012 ROW Encroachment Agreement-Commercial Page 1 0 of 10 KENT AND CO . 1101 W. MAGNOLIA F TEXAS 76104 GXHIBIT A P1 W �c W< IN 181 lz 11w,I I Q I uji S3NlM 00 12 iNDN E LUI < IRE Fit J. ksk k l � P Or T' P Of alf LD LJ gem Ilk kk � I �w k i Willi IF— Ilk 1* NWAN lot A AL 79 r AL Not Ilk So 0 e 1 z z , � �.. '"' LU uuu Lu 0 a WIN MUMS 1018 LLJI L U) 0 S3NIM 00 19 INTA r C z " E5 ' -is Si ISM TF-7 I I x An 00 l L I co N :5 I I I I' I' I I I 1 0 I I I I l I I' � L Vl is fft AL .00, woo � w I I' I L I I co !lllm DATE(MNMM,DMJ? ) AC CERTIFICATE OF LIABILITY INSURANCE, THIS CERTIFICATE IS ISSUED AS A MATTER F INFORMATION ONLY AND CONFERS Nth RIGHTS UPON THE CERTIFICATE HOLDER. THIS 'CERTIFIC;ATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,D, E XTEND OR ALTER THE COVERAGE CAE AFFORDE[ BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE ICES NOT CONSTITUTE A CONTRACT BETWEEN TRICE: ISSUING IN'SUR R($), AUTHORIZED, REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE TI!FI'C.ATE HOLDER.. IMPORTANT: If the certificate holder Is an ADDITIONAL AFL INSURED,the policy(ies),'must be endorsed. It SUBROGATION IS WAIVED,subject to the terms and conditions of'the policy,certain policies may requilre an endorsement. A statement nt on this certificate,does not confer ri hat to the certificate holder in lieu of such endorsement .. PRODUCERArc . 1 ...w,. .__... ��._�. . _.. ...... _ _�.. Willis NAME- TIj� IS, Inc I'I�NCiI'V�E ... 7 C M� 1 826 North Loo 1 604 Nest E-MAIL . �� �.�..mm.. 'I�ItM ALAI'SRI S4.tina.I�v II . � San Antonio TX 782481 INSURERS AFFORDING G COVERAGE � NAIC# m INSURER A .. �. .: INSURED ICI.. r ._I � !...:: I .....� ,o_w, .M,.µw .. wW... _. ,Frank Kenit Motor Company L... li.bert� ..m. 5 W Loop 820 � !� � INSURER m. Fort Worth TIC '611 6 �'!� .�..._ _. �m__ ... �_..... ...... INSURER E. INSURER F COVERAGES CUE'S CERTIFICATE NUMBER:1446504447 REVISION NUMBER: THIS IS TO CAEI TIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN'ISSUED TO,THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION CSI=ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED BIBEC HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS A.N._..I.D CONDITIONS OF SUCH POLICIES.LICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Cm _ . . iINR � PL Pc�c EP N �.........w., LIMITS LTR E OF INSURANCE POLICY NUMBER IO E IM MID YY ......_ _ GENERAL LIA131LITY B2-Z91,-506843-074 /1/2014 /1/2015 EACH OCCURRENCE 1,000,000 X 'ERCIAL GENERAL LIABILITY PREMISES,fEq o n 110,000 .� MED. E....k._.P CA�.... e K. rCLAIMS-IAry E F]OCCUR wm�.....�.._.^.,, ......_.....e...�,,...,._.. I PERSONAL&ADV INJURY $1,00:0,0100 Y _..... „....._.,.,.,.W G $2,000,000 GENERAL AC��� 'ECATI ...µ.., .....�....,. I. i CEN"L AGGREGATE LINT APFLIES PEF PRODUCTS-C OME/OP AGG $2,0100,000 PRO- POLICY OC A AUTOMOBILE LIABILITY 1/1/2t 14 /1/ 015 �. ,o., . . .��� I 0 A2���'�1�5(�fi �l��_0 � E s��Mnt 1 000,0. ..._�...___ ,n. lx— ANY AUTO .6BODILY IILY INJURY I F'r person), $ _.. ALL OWNED SCHE ULE1 IC�1IL I NJ N ICY I I�er accident) AUTOS �.. I AUTOS p NON-OWNED �PROPERTY DAMAGE $ HIRED � )AUTOS .. .�� so nt........__ _..�_�m���. �.._.........���_,,..w._. G $ 167—X UMBRELLA LIAe X UK LUUR '9877 65 1/1/20!14 /1/2015 EACH OCCURRENCE $10,0100,000 EXCESS M..IAE CLAIMS-MADE AGGREGATE 1 E1 RETENTION $ WORKERS COMPENSATION IWI C3T STATU- H_ AND EMPLOYERS'LIABILITY IABILITY Y I N � �� A ECUTIVc E L,:..EACH ACCIDENT IEIES EXCLUDED? d 1 ... .. ....�. ..�,... .�......mm....,. (Mandatory In NH) E.L.DISEASE-EA EMPLOYE If yes,d scAb under 0 SCRIPTION OF PERATIC NS below �E.L.]DISEASE�POLICY LINT C Commercial Property L12 Z91-5106 43-IJ84 1/1/2014 /1/2015 B1ianket Building 1,505,251 Special 1~ rrm Including Blanket.Contents $12,91447, 00 Theft Business,Income $13,,710,790 ,?00 I DESCRII 71ON OF OPERATIONS I LOCATIONS,I VEHICLES (Attach ACORD 101,Additional Remarks Schedule,If more sip uce is required) ISM 1102"03-09, _ Schedule of M r gagee Holders an Loss Payees CA 210148 2 gg-Glarage Liability-Designated Insured Attached: Texas Insurance Certificate Letter Named Insured Schedule Statement of alIues CERTIFICATE HOLDER CANCELLATION! 1 ABOVE DESCRIBED POLICIES BE CANCELLED:'BEFORE �HC�ul1�ANY THE A'�C) THE EXPIRATION DATE THEREOF11 NOTICE W04LL BE DELIVERED IN City of Ft.Worth ort M ACC ORDANCE WITH THE POLICY PROVISIONS, 1 000 Th roc m o rtl n St. Ft.Worth TX 761012 AIJTHI RUED REPRESENTATIVE W 988-2010 ACORD CORPORATION. All ri Il is reserved. AC CORD 26 201+0/05 The AC OR,ID name and logo are registered marks of ACOF