HomeMy WebLinkAboutContract 14804 .3( REI ENT _1�1:'GARDJNG DRAINAGE-EASEMEN-1- A C C ESS
STATE OF TEXAS &
& KNOW ALL MEN BY THESE PRESENTS :
COUNTY OF TARANT & CITY SECRETAX
CONTRACT
THE CITY OF FORT WORTH , TEXAS ( "City" ) and WINWOOD-FORT WORTH ASSOCIATES,
LTD. . a Texas limited partnership (herein collectively referred to as
"Owner" ) , hereby enter into the following agreement ( "Agreement" ) .
WHEREAS , Owner hereby certifies that it is the owner of certain real
property ( "Property" ) located in the City of Fort Worth , State of Texas ,
said Property being legally described as :
All that certain lot , tract , or parcel of land in the John Heath Survey,
Abstract 641 , Tarrant County, Texas , being a part of that certain Lot 1 ,
Block 4 , Cityview, an addition to the City of Fort Worth , Tarrant County,
Texas as recorded in Volume 388/180 , Page 97 , Plat Records , Tarrant
County, Texas , and being more particularly described by metes and bounds
on the attached Exhibit "B" ; and
WHEREAS , Owner proposes to construct a 30 foot wide pedestrian and vehicle
access crossing ( " Improvements" ) over an existing approximately 60 foot
drainage easement , such easement being more particularly described as the
Cityview Drainage Easement ( "Easement" ) as it passes through the Cityview
Addition , as indicated on the location map, attached hereto as Exhibit"A"
and made a part of this Agreement ; and
WHEREAS , City requires that an agreement be made with Owner regarding
indemnification , maintenance and liabilities involving the Improvements
which Owner desires to place over , across and within said Easement .
NOW, THEREFORE , Owner , acting by and through its general partner, and
City , acting by and through its duly authorized officers , for and in
consideration of the mutual covenants and conditions contained herein, and
other good and valuable consideration , the receipt and sufficiency of
which is hereby acknowledged , hereby agree as follows :
1. Owner , its successors and assigns , hereby agree that the Improvements
to he placed by it over, within and across the Easement will meet all
City standards and policies governing the design and construction of
the same , such facilities to be constucted according to plans and
s p e c i f i c a t i o n s which m u s t be approved by the Director of
Transportation and Public Works of the City of Fort Worth . Should
repair or replacement of the Improvements be necessary in the future,
plans for such repair or replacement must , likewise, be approved by
City, which approval shall not be unreasonably withheld .
2 . Owner, or its successors or assigns, hereby assume all responsibility
and liability for design, construction , repair and replacement of
improvements to be placed over , within and across said Easement .
Owner , or its successors or assigns , also hereby relieve City, its
officers , agents and employees , of the responsibility and liability
for any inadequacies of all designs, plans and specifications relating
to the aforementioned Improvements and assume all liability and
responsibility for the same . Moreover, the approval by the Director
of Transportation and Public Works of any such designs , plans and
specifications shall not constitute or be deemed to be an assumption
of or a release of the responsibility and liability of Owner, its
engineers , employees and agents , for the accuracy and competency of
any designs , plans or specifications for said Improvements . It is the
intent of the parties that such approval by the Director of
Transportation and Public Works signifies City ' s approval only of the
general design concept of the work to be performed in constructing,
repairing .or replacing the Improvements .
Owner , or its successors or assigns , hereby assume all liability and
responsibility for maintenance of the Improvements to be placed over ,
across or within the Easement . Further , Owner , or its successors or
assigns , by these presents , agree to maintain said Improvements in a
safe condition for use by owners , guests , invitees , employees or
tenants of property served by the improvements .
4 . In the event that it becomes necessary for City to make repairs or
improvements to, within or around the Easement which may affect
Owner 's Improvements , Owner- , or its successors or assigns, shall pay
all costs for the demolition , protection , relocation and/or rebuilding
of the Improvements if such is reasonably necessary in order to enable
City to Make Such repairs or improvements .
5. Owner agrees to , 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, or whatsoever kind or character,
whether real or asserted, arising out of or in connection with ,
directly or indirectly, the design, construction, use, maintenance,
location or existence of said Improvements and their appurtenances,
whether or not caused , in whole or in part , by alleged negligence of
officers , agents , servants , employees , Contractors, subcontractors ,
licensees or invitees of City; and Owner hereby assumes all liability
and responsibility of City, its officers , agents , servants and
employees for any and all claims or suits for property damage or loss
and/or personal injury, including death, of whatsoever kind or
character , whether real or asserted, arising out of or in connection
with, directly or indirectly, the design , construction , use,
maintenance , location or existence of said Improvements and their
appurtenances , whether or not caused , in whole or in part, by alleged
negligence of officers , agents , servants , employees , contractors ,
subcontractors , licensees or invitees of City. Owner shall likewise
indemnify, hold harmless and reimburse City for any and all damage or
destruction of City property arising out of or in connection with the
acts or omissions of Owner, its engineers, contractors,
subcontractors , agents , employees , licensees or invitees, or caused in
whole or in part by alleged negligence of officers , agents , servants ,
employees , contractors , subcontractors , licensees or invitees of City.
Notwithstanding anything to the contrary contained herein, Owner shall
in no event or circumstance he required to indemnify, hold harmless or
defend City, its officers , agents , servants or employees from or
against any Claims or suits for property ( regardless of ownership)
damage or loss and/or personal injury, including death , of whatsoever
kind or character, whether real or asserted, arising out of or caused
solely by the gross negligence or willful , wanton or reckless
disregard on the part of City, its officers , agents , servants,
employees , contractors , subconstractors , licensees or invitees.
6. In the event that the Improvements are destroyed or damaged by fire,
flood, or any other cause, replacement or reconstruction of the
Improvements shall be the sole responsibility of the Owner, or its
successors or assigns, and all costs for said replacement or
reconstruction shall be paid by Owner, or its successors or assigns .
The Improvements shall be replaced or reconstructed according to
designs , plans and specifications approved by City, which approval
shall not be unreasonably withheld.
7 . Owner agrees to furnish City a certificate of insurance as proof that
it has secured and paid for a policy of liability insurance covering
all risks related to the use and occupancy of the Improvements over,
across and within the Easement . The amounts of such insurance shall
be not less than the following:
Property damage, per occurrence $ 100 , 000
Personal injury or death, per occurrence $ 1 ,000 , 000
with the u riders ta rid ing and agreement by Owner that such insurance
amounts may be revised upward at City' s option , upon giving Owner
written notice stating the reasons for any such revision, and that
Owner covenants and agrees to so revise such amounts within thirty
(30) days following notice to Owner of such requirement provided ;
however, Owner shall not be required to obtain insurance coverage
beyond the following amounts :
Property damage , per occurrence $ 500 ,000
Personal injury or death , per occurrence $10 ,000,000
Owner agrees , binds and obligates itself , its successors or assigns to
maintain and keep in force such liability insurance at all times
during the term of this Agreement , and failure to do so will be
grounds for termination of this Agreement by City after notice to
Owner, or its successors or assigns , of an intent to so terminate. A
certificate of insurance as proof of such maintenance shall be
submitted annually to City on the anniversary date of the execution of
this Agreement . Each insurance policy shall provide that it cannot be
cancelled or amended without at least thirty (30) day's prior written
notice to City .
B . 6wner' - cov(rnants , agrees and acknowledges that this Agreement conveys
to Owner only a privilege to construct , maintain and locate the
Improvements over, across and within the described drainage Easement,
and is not a conveyance of any right , title or interest in or to the
Easement.
9. Owner covenants , agrees and acknowledges that City may terminate this
Agreement and the privileges granted hereunder if : ( i ) Owner is in
default in the performance of any of the terms , conditions or
covenants contained herein to be performed or observed by Owner; ( ii)
City gives written notice of the existence of any such default,
specifying the nature thereof , to Owner and to the holder (the
identity and address of which to be furnished by Owner to City) of any
deed of trust lien covering the property; and ( iii ) such default is
not remedied within ninety (90) days after written notice thereof is
given. Owner covenants and agrees that , in the event this Agreement
is terminated as herein provided , Owner shall immediately remove said
Improvements from their locations across the City' s Easement; and
shall Owner fail to remove same , City shall have the right to remove
and expel same , forcibly if necessary, from its location in and across
said Easement, and in such event , City shall incur no liability as a
result of such removal . Owner shall pay all costs of such removal .
10. Owner and City mutually covenant and agree that City, acting by and
through its duly authorized agents , officers , servants or employees ,
shall , at any reasonable time , have the right to enter upon streets or
other roadways within Owner ' s Property for the purpose of examining
and inspecting the Improvements and their appurtenances to determine
the compliance by Owner with its obligations hereunder.
11 . This Agreement and the obligations hereunder shall not be assigned by
either party without the prior written consent of the other party,
such consent not to be unreasonably withheld, and such assignment
without such prior written consent shall be void .
12 . Owner shall operate hereunder as an independent contractor and not as
an officer, agent , servant or employee of City. Owner shall have
exclusive control of and the exclusive right to control the details of
the work and services performed hereunder, and all persons performing
same , and shall be solely responsible for the acts and omissions of
its officers , agents , servants , employees , Contrators and
subcontractors . The doctrine of respondeat superior shall not apply
as between City and Owner, its officers , agents, servants, employees
and subcontractors , and nothing herein shall be construed as creating
a partnership or joint enterprise between City and the Owner.
13. Owner agrees to deposit with City, when this Agreement is executed, a
sufficient sum of money to be used to pay the necessary fees to record
this Agreement in its entirety in the Tarrant County Deed Records .
After being so recorded, the original hereof shall be returned to the
City Secretary of the City of Fort Worth, Texas.
14 . In any action brought by City for the enforcement of the obligations
of Owner, City shall be entitled to recover interest and reasonable
attorneys ' fees .
15. Should any cause of action , at law or in equity, arise out of the
terms and conditions of this Agreement , or the performance or
non-performance thereof , venue for said action shall lie in Tarrant
County, Texas .
16. The provisions of this Agreement relating to indemnities between the
parties hereto and their successors and assigns shall not create any
rights in third persons or entities to the benefits of such
indemnities .
17 . This Agreement shall run with the Property and shall be binding upon
City and Owner and their respective successors and assigns , and shall
continue in effect so long as Improvements shall remain over, across
and within the Easement or until expressly released by a written
document executed by Owner and City, or their successors or assigns,
or until terminated by the City in accordance with Paragraph 9
hereof . However, it is expressly agreed that in the event Owner at
some future date should sell the Property, and concurrently therewith
assign this Agreement and the obligation hereunder, all rights,
liabilities and obligations under this Agreement , of whatsoever kind
-3-
or character, shall be assumed by owuo, ' n x000*uooro or uonioou ; and
City and nwocr , and their respective successors or axoi
*8es«nP mp:o /
nrmnnto , covenant and agree that following any such/assignment by
uvuer, Owner shall have no further liabilities or obligations to City
or to third persons in connection with this Agreement or the
Improvements contemplated here/n.
zo. This Agreement Constitutes the sole and exclusive agreement and
vnuorotonuioo between oeoor and cuv pertaining to the ouuemrut ,
Owner' s Improvements over, within and ucmeu said Easement , and the
rights arid obligation of City and owner in connection with said
Improvements .
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State of Texas
mv commission expires :
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1985.Accepted and approved this day of
CITY OF FORT WORTH, TEXAS
By:
Title:
ATTEST:
City Secretary
APPROVED AS TO FORM AND LEGALITY:
'City Attorney
BEFORE ME, the undersigned, a Notary Public in and for said
County and State, on this day personally appeared
. known to me to be the person and officer who—se
ndme is subscribed to the foregoing instrument and acknowledged
to me that the same was the act of the said and that he
executed the same as the act of said company for the purposes
and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day
of 1985.
Notary Public in and for
Tarrant County, Texas
My Commission Expires:
BEFORE ME, the undersigned, a Notary Public in and for said
County and State, on this day personally appeared
I . of THE CITY OF FORT WORTH, a Texas
home rule municipal corporation, known to me to be the person
and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that the same was the act of
the said CITY OF FORT WORTH, and that he executed the same as
the act of said municipal corporation, for the purposes and
consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day
of 1985.
Notary Public in and for
Tarrant County, Texas
My Commission Expires:
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EXHIBIT "B"
All that certain 30 foot wide lot , tract , or parcel of land in the John
Heath Survey, Abstract 641 , Tarrant County, Texas , and being a part of
that certain Lot 1 , Block 4 , Cityview, an addition to the City of Fort
Worth, Tarrant County, Texas , as recorded in Volume 388/180, Page 97-98,
Plat Records , Tarrant County, Texas , and being more particularly described
by metes and bounds as follows :
BEGINNING at a point in the centerline of Marina Club Boulevard and being
North 13 degrees 54 minutes 17 seconds West 10-72/100 feet from the
intersection of the centerline of said Marina Club Boulevard with the
centerline of Sunfish Drive, said point also being in the South line of
that certain Common Area Easement (Drainage Easement) as recorded in
Volume 8050, Page 1028 , Deed Records , Tarrant County, Texas ;
THENCE leaving said centerline and with the South line of said Common Area
Easement (Drainage Easement ) South 57 degrees 50 minutes 21 seconds West
15-80/100 feet ;
THENCE leaving said South line and at 2-00/100 feet West of and parallel
to the West line of said Marina Club Boulevard the following two (2)
courses and distances :
( 1 ) North 13 dep,rees 54 minutes 17 seconds West 49-66/100 feet to the
beginning of a curve to the left of which the centerpoint of said curve
bears South 76 degrees 05 minutes 43 seconds West 330-53/100 feet;
(2) With said curve to the left in a northwesterly direction an arc
distance of 52-65/100 feet to a point in the North line of said Common
Area Easement (Drainage Easement) ;
THENCE with said North line South 64 degrees 55 minutes 00 seconds East
3-53/100 feet ;
THENCE continuing with said worth line North 70 degrees 53 minutes 29
seconds East 27-68/100 feet to the beginning of a Curve to the right of
which the centerpoint of said curve bears South 67 degrees 41 minutes 14
seconds West 360-53/100 feet ;
THENCE with said curve to the right and at 2-00/100 feet East of and
parallel to the East line of said Marina Club Boulevard in a southeasterly
direction an arc distance of 52-91/100 feet ;
THENCE South 13 degrees 54 minutes 17 seconds East at 2-00/100 feet East
of and parallel to said East line 39-77/100 feet to a point in the South
line of said Common Area Easement (Drainage Easement ) ;
THENCE with said South line South 57 degrees 50 minutes 21 seconds West
15-80/100 feet to the place of beginning and containing in all some 0 .066
acre of land (2890 square feet) .
'd�d�� r� m .„�, �0� r 1� Jp"VIP7
City of Fort Worth, Texas
Mayor and Council Communication
DATE REFERENCE SUSJEC . DRAINAGE EASEMENT ACCESS AGREEM r4 NT PAGE
NUMBER BETWEEN THE CITY OF FORT WORTH AND 0 NERi 1
1-7-66 **'C-9453 OF LOT 1. BLOCK 4. CIJY VIEW
RECOMfirENDATION
It is recommended that the Mayor be authorized to accept and execute the
drainage easement access agreement proposed by Wjp#q d , rt o ,, i„ As�ca ates,
Ltd. ,��
BACKGROUND
Winwood-Fort Worth Associates, Ltd. , owners of Lot 1, Block 4, City View
Addition, propose to build an emergency access across a drainage easement
situated on the property. (See Exhibit "All)
Wnwood-Fort Worth Associates, Ltd. will assume full responsibility and
liability for the construction and maintenance of the emergency access easement
spanning the drainage easement and will hold the City of Fort Worth harmless
against any claims.
FINANCING
There is no cost to the City for the drainage easement access agreement.
Winwood-Fort Worth Associates, Ltd. shall pay the cost of all necessary
recording fees.
DAI:dn
Attac hment
l
SUBMITTED FOR IMt
CITY MAN
AGER'S DISPOSITION' BY COUNCIL, PROCESSED BY
OFFICE BY: J APPROVED
ORIGINATING ° OTHER (DESCRIBE)
DEPARTMENiC HEAD: Gary Santerre CITY SECRETARY
FOR ADDITIONAL. INFORMATION Drol et 7908
CO TACT„ DATE