HomeMy WebLinkAboutContract 19212 DRAINAGE EASEMENT ENCROACHMENT AGREEMENT
STATE OF TEXAS
COUNTY OF TARRANT C IT Y S 717,P E T
WHEREAS, Reliance Insurance Company, an insurance company
organized under the laws of the Commonwealth of Pennsylvania
(hereinafter referred to as "Owner" ) , represents that it is the
current owner of the real property legally described as: Block IR
and Lot 1, Block 2R-1, and Lot 3, Block 4-R-1 , Ridgmar Meadow
Addition, an addition to the City of Fort Worth, Tarrant County,
Texas, hereinafter referred to as the Property; and
WHEREAS, the City of Fort Worth has been granted an easement
for drainage purposes , hereinafter referred to as the Easement#
which runs through the Property; and
WHEREAS, Owner has requested that the City grant to Owner the
privilege to construct certain improvements consisting of a paved
parking area, hereinafter referred to as the Encroachment, which
will extend in, on, over or along the Easement and which
Encroachment is more particularly described and shown on
Exhibit "A" to this Agreement, which is incorporated as part of
this Agreement; and
WHEREAS, the City agrees to allow the construction and main-
tenance of the Encroachment, provided that Owner and its successors
and assigns strictly comply with the provisions set out herein; and
WHEREAS, the City and prior owners of the Property have here-
tofore entered into agreements permitting other encroachments, here-
inafter referred to as the Prior Improvements, into the Easement,
which agreements are on file in the office of the City Secret
aw,irk, xi,.'ruc
I'll 111111ARY
F1 WORTH, [LX[.
Fort Worth as City Secretary Contracts No. 14654 and No . 14964 (the
Prior Contracts) ; and
WHEREAS, Owner has assumed the obligations of these Prior Con-
tracts by its purchase of the Property and execution of City
Secretary Contract No. HQCV; and
WHEREAS, the construction of the Encroachment permitted under
this Agreement will involve the removal of the four access cros-
sings permitted under Contract No. 14654 and a portion of the steel
pipe railing permitted under Contract No. 14964; and
WHEREAS, City and Owner agree that this Agreement shall super-
sede and replace the Prior Contracts 'concerning the rights and
duties of the parties to this Agreement concerning all permitted
encroachments in the Easement as it runs through the Property,
including the Encroachment and the remaining portions of the Prior
Improvements after construction of the Encroachment, provided that
the Prior Contracts shall remain in effect until the removal of the
Prior Improvements and provided further that the indemnity provi-
sions of the Prior Contracts shall remain in effect for any claim,
damage, costs, expense, lawsuit, cause of action or other adverse
consequence arising prior to the removal of the Prior Improvements .
NOW, THEREFORE, WITNESSETH:
That Owner and the City hereby covenant and agree as follows:
1 . Owner shall assume all responsibility and liability for
the design, construction, repair and replacement of the
Encroachment. Owner agrees that the Encroachment will comply with
all standards, policies and procedures of the City governing the
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design and construction of same. Prior to the construction of the
Encroachment, Owner shall submit plans and specifications to the
Director of Transportation and Public Works of the City of Fort
Worth (hereinafter referred to as the "Director" ) . owner shall not
commence construction of the Encroachment or undertake any efforts
preliminary thereto until the Director has indicated to Owner in
writing that he has no objections to said plans and specifications.
The plans and specifications for any subsequent repair, replace-
ment, expansion or alteration of the Encroachment must also be
submitted to the Director, and the Director must indicate in
writing that he has no objections thereto, prior to the commence-
ment of such work or any efforts preliminary thereto. Owner hereby,
releases City from any responsibility or liability in any way
related to the plans and specifications . In addition, Owner shall
indemnify City in accordance with Paragraph 4 herein for any
responsibility or liability in any way related to the plans and
specifications asserted against City by any third party.
2 . Owner shall be solely responsible for maintenance of the
Encroachment. Owner's maintenance of the Encroachment shall at all
times be in compliance with City of Fort Worth standards, and, in
addition, owner shall keep and maintain the Encroachment in safe
condition for use by the public at all times . owner shall be
responsible for the Encroachment and shall assume any liability in
any way concerning, related to, or resulting from it, either
directly or indirectly, except as otherwise provided herein.
3 . Should it become necessary for City to repair, replace,
or
maintain, remove, enlarge, expand or otherwise alter in any F
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public facilities or utilities located in, under, on or over the
Easement, City shall not be responsible for any damage or other
adverse consequence resulting therefrom to the Encroachment or to
Owner. Furthermore, Owner shall pay all costs incurred by City
with respect to any necessary demolition, protection, relocation or
removal of the Encroachment resulting from or in any way related to
City's use of the Easement. After the completion of the actions
herein referenced by the City, Owner may, with the consent of the
City, proceed to reinstall the Encroachment, at Owner's expense,
for so long as it is consistent with the then-use of the Easement
and complies in all material respects with the terms of this
Agreement.
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4 . Owner shall indemnify, hold harmless, release and defend
City from and against any and all claims , damages, costs , expenses ,
lawsuits, causes of action, or other adverse consequences related
or in any way pertaining to, directly or indirectly, the design,
construction, use, maintenance, location or existence of the
Encroachment and its appurtenances . The foregoing provision shall
apply in any event to the acts or omissions of Owner and shall
include but not be limited to any claims, damages, costsj expenses ,
lawsuits, causes of action or other adverse consequences, as
described in said provision, resulting from the negligence of the
City of Fort Worth. Provided, however, that this indemnity shall
not apply to the extent that damages to a party other than Owner or
an interested party (as defined herein) are proximately caused by
the gross negligence or willful misconduct of the City in connec-
tion with actions of the City described in Section 3 of this
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Agreement. Owner hereby waives any right to assert any claims,
damages, costs , expenses, lawsuit, causes of action or other
adverse consequences against City resulting from or related in any
way to Owner's use of the Easement.
5 . In the event that the Encroachment is destroyed or
damaged by fire, flood or any other cause, its replacement or
reconstruction shall be the sole responsibility of Owner, and all
costs for said replacement or reconstruction shall be paid by
Owner, and the Encroachment shall be reconstructed according to
plans and specifications approved by City in accordance with this
Agreement.
6 . Owner agrees to furnish City a certificate of insuranc*
as proof that it has secured and paid for a policy of public lia-
bility insurance covering all public risks related to the use,
existence and occupancy of the Easement and all other risks assumed
by Owner under this Agreement. 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 understanding of and agreement by Owner that such insur-
ance amounts shall be revised upward at City's option - not more
frequently than once every two (2) years if then-market conditions
reasonably warrant such revision and that Owner covenants and
agrees to so revise such amounts within Thirty (30) days following
notice to Owner of such requirement.
Owner agrees to maintain and keep in force such public lia-
bility insurance throughout the term of this Agreement, and failure
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to do so will be grounds for termination of this Agreement by City,
after notice to owner of such default pursuant to the provisions of
Paragraph 8 below.
A certificate of insurance as proof of such maintenance shall
be submitted annually to City on the anniversary date of the execu-
tion of this Agreement. Each such insurance policy shall provide
that it cannot be canceled or amended without at least thirty (30)
days ' prior written notice to City.
7 . Owner covenants, agrees and acknowledges that this
Agreement is solely for the purpose of permitting Owner to con-
struct, maintain and locate the Encroachment over or within the
described drainage channel and is not a conveyance of any right,
title or interest in or to the Easement.
8 . Should Owner default in the performance of any of the
terms, conditions or covenants contained herein, the City shall
give written notice of the existence of such default, specifying
the nature thereof, to the Owner in the manner provided in this
Agreement. The Owner shall have a period of sixty (60) days after
written notice thereof is given to remedy such default; provided,
however, that in the event such default is not reasonably suscep-
tible of cure within such sixty (60) day period, such cure period
shall be extended for so long as owner has commenced cure within
such sixty (60) day period and is diligently pursuing the cure
thereafter. Provided, further, that the sixty (60) day cure period
provided for herein shall not be applicable to the breach of the
covenant to maintain insurance provided for in Section 6 _o-f hlid
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Agreement nor to any breach which, in the reasonable opinion of the
Director, constitutes a threat to public health and safety.
9 . Owner covenants, agrees and acknowledges that City may
terminate this Agreement and the privileges granted herein if:
(a) Public necessity requires termination of this
Agreement and removal of the Encroachment, in the
reasonable opinion of the Director, provided that
the Director shall give sixty (60) days ' prior
written notice of such termination to owner in the
manner provided by this Agreement; or
(b) A continuing threat to public health and safety
caused by the continued existence and/or operatiop
of the Encroachment requires the termination of
this Agreement and removal of the Encroachment, in
the reasonable opinion of the Director, provided
that the Director shall give written notice of such
termination to Owner in the manner provided by this
Agreement; or
(c) Owner is in breach of the covenant to maintain
insurance provided in Section 6 of this Agreement,
provided that the Director shall give written
notice of such termination to Owner in the manner
provided by this Agreement.
(d) Nothing herein shall be construed as limiting the
right of the City to take any other action avail-
able at law or in equity to enforce the terms of
this Agreement or to seek damages for its breach.
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10. In the event this Agreement is terminated as herein pro-
vided, Owner shall remove the Encroachment on or before ninety (90)
days after such termination at Owner's sole expense. Provided,
however, that in the event of termination for breach which consti-
tutes a threat to public health and safety, the owner shall take
all steps necessary to immediately remove the threat to public
health and safety and to remove the Encroachment as soon as pos-
sible thereafter. Should Owner fail timely to remove the Encroach-
ment, the City shall have the right to remove the Encroachment.
City shall incur no liability as a result of such removal, and
Owner hereby releases City and holds it harmless from any such
liability. In addition, Owner shall indemnify City in accordancq
with the applicable provisions of this Agreement with regard to
such removal . All reasonable charges incurred by City in connec-
tion with such removal shall be borne by owner and shall be a per-
sonal liability of Owner and in addition shall constitute a lien
against the Property. Said lien shall be perfected by filing an
affidavit in the Deed Records of Tarrant County, Texas, specifying
the amount of the lien and the work performed and making reference
to this agreement, and a copy thereof shall be provided to the
Owner and interested parties as defined in this Agreement on or
before ten ( 10) days after such affidavit is filed.
11. Owner and City mutually covenant and agree that City,
acting by and through its duly authorized agents, officers, ser-
vants or employees, shall have at any and all times the full and
unrestricted right to enter Owner's property for the purpose of
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examining and inspecting the Encroachment and its appurtenances to
determine the compliance by Owner with its obligations hereunder.
12 . 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 the Encroachment
shall remain over, across and within the Easement or until
expressly released by written document executed by Owner and City,
or their successors and assigns, or until terminated by the City in
accordance with this Agreement. It is expressly agreed, however,
that, in the event Owner at some future date should sell the
Property and concurrently therewith assign this Agreement and the
obligations hereunder, all 4 further rights, liabilities and obligal
tions under this Agreement shall be assumed by Owner's successors
and assigns; provided that Owner shall give to the City prior
written notice of any such assignment . Upon such notice, assign-
ment, and assumption of the obligations hereunder by the new owner
of the Property, Owner shall have no further liabilities or obli-
gations to City in connection with this Agreement .
13. Owner shall operate hereunder as an independent con-
tractor 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, representatives, and independent contractors. The doc-
trine of respondeat superior shall not apply as between City and
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Owner, and nothing herein shall be construed as creating a partner-
ship or joint enterprise between City and Owner.
14 . Owner' agrees to deposit with the City of Fort Worth when
this Agreement is executed a sufficient sum of money to be used to
pay necessary fees to record this Agreement in its entirety in the
Deed Records of Tarrant County, Texas. After being so recorded,
the original hereof shall be returned to the City Secretary of the
City of Fort Worth, Texas .
15 . In any action brought for the enforcement hereof, the
prevailing party shall be entitled to recover its court costs,
expenses, and reasonable attorneys ' fees .
16 . Any cause of action for breach of this Agreement shall be,
brought in Tarrant County, Texas . This Agreement shall be governed
by the laws of the State of Texas .
17 . Any notices required hereunder shall be effective as of
the date they are deposited in the United States mail certified,
return receipt requested. The notices shall be effective when
addressed as follows, provided the party making the notice has not
received written notification of a change in same:
To Owner: Reliance Insurance To City: City of Fort
Company Worth
c/o The Woodmont Corporation Attn. : Transportation/Public
Attn. : Stephen Coslik Works Director
6500 West Freeway 1000 Throckmorton Street
Fort Worth, Texas 76116 Fort Worth, Texas 76102-6311
Upon request, the owner may designate additional parties to
receive copies of any notice to be sent by the City hereunder,
including, but not limited to, Owner's lenders, which additional
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parties, together with owner, are referred to herein collectively
as "interested parties" .
18. The failure or inaction by City in enforcing any of its
rights or privileges hereunder shall not constitute a waiver of
City's ability to subsequently enforce such rights or privileges .
19 . The covenants and agreements set forth herein shall con-
stitute a servitude upon and shall run with the land and be binding
upon Owner and its successors in interest to the Property or any
part of the property.
20 . The term "Owner" as used herein shall mean Owner and
shall also include the heirs , successors and assigns of Owner, as
well as its agents, servants, employees, representatives and index
pendent contractors . The term "Owner" shall also include anyone
claiming ownership of the Property, in possession thereof, the
record title holder, and/or the legal title holder.
21 . The term "City" as used in Section 4 herein shall include
the City and City's agents, representatives, servants and employees
and independent contractors of the City of Fort Worth.
22 . Should any portion of this Agreement be determined to be
illegal, unconstitutional or otherwise unenforceable, the remaining
portions of the Agreement shall continue in force and remain effec-
tive and shall be construed consistently with the originally
intended purposes of the Agreement.
23 . This Agreement may be amended by written amendment exe-
cuted by both parties hereto. This Agreement and any subsequent
written amendments shall constitute the entire agreemen Lw�
parties and shall supersede any prior or contemporaneous
written agreements pertaining to the subject matter contained
herein.
24 . Upon the removal of the Prior Improvements, the provi-.
sions of this Agreement shall supersede the provisions of City
Secretary Contracts No. 14654 and 14964, provided, however, that
the indemnity provisions of said contracts shall continue in force
and effect for any claims, damages, costs, expenses , lawsuits,
causes of action or other adverse consequences arising out of or in
connection with, directly or indir y, t Prior Improvements.
SIGNED this 44#day of 1992 .
aLIANC
Q
ENSURANCE COMPANY
An Ins U nce Company Organized
Under the Laws of the
Commonwealth of Pen sylvania
A! �A
By: %
Name: PETER -
Title: VICE PRESIDENT
ATTEST: CITY OF FORT WORTH
By,.-
City Secretary Name:
Title:
APPROVED AS TO FORM AND LEGALITY:
City Attorney
Date: - Date
2 , ZY
12
STATE OF S
COUNTY OF S
BEFORE ME, the undersigned authority, a Notary Public in and
for the State of Texeri§, on this day personally appeared
known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged tome that
he/she executed the same as the act and deed of Reliance Insurance
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
1992 .
C:7,',0 1.t fi fv. York
Notary Public'`yin and for
the State of Texas
13
STATE OF TEXAS S
COUNTY OF TARRANT S
BEFORE ME, the undersigned authority, a Notary Public in and
for the State of Texas, on this day personally appeared
CVCL of the City of Fort
Worth, a Texas home rule municipal corporation, known to me to be
the person 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/she 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 J day o,
1992 .
Pubil-c
-rEv
STATE OF ^AS
Notary Public in and for
the State of Texas
14
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ity of Fort Wotf/4 Texas
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Mayor and Council mun
DATE- 0 /14/92 kEFER-UNCE NUMBER **C-13465-rOG -NAME 12RIDMEA PAGE 1 of 1
SUBJECT APPROVAL OF DRAINAGE EASEMENT ENCROACHMENT AGREEMENT (RIDGMAR MEADOW
I ADDITION) WITH RELIANCE INSURANCE COMPANY
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute the
attached drainage easement encroachment agreement with Reliance Insurance Company.
DISCUSSION:
Reliance Insurance Company, an insurance company organized under the laws of
Pennsylvania, has purchased and is in the process of redevelopment of a commercial site
north of Ridgmar Mall (Block 1R, and Lot 1, Block 2R-1 and Lot 3, Block 4R-1) . In
connection with this redevelopment, it has requested permission from the City to
construct certain encroachments, consisting of a paved parking area, over a City
drainage easement. The proposed encroachment would replace certain existing
encroachments which have been permitted by the City pursuant to City Secretary
Contracts No. 14654 and 14964. Reliance Insurance Company has assumed the obligations
of these prior City Secretary Contracts (see M&C C-13377, adopted by the City Council
on May 19, 1992) . The attached agreement would supercede these prior contracts except
as indicated therein.
The City Attorney' s office and legal counsel for Reliance Insurance Company have
negotiated the attached drainage easement encroachment agreement which would permit the
construction and maintenance of the encroachment by Reliance Insurance Company. The
Transportation/Public Works Department has also reviewed the attached agreement and has
approved same as to form.
FISCAL INFORMATION/CERTIFICATION:
This action by the City Council does not require expenditure of City funds.
WA:a
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: to
Mike Groomer 6140
Originating Department Head:
Wade Adkins 7623 -Tfr-o-my-
For Additional Information
Contact:
Wade Adkins 7623
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