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HomeMy WebLinkAboutContract 47555 S345 51. , EC It CITY SECRUAW 111,�H =1: 2016 RIGHT OF WAY CONTUCT NO. - 0lTYOFFORTWORTH ENCROACHMENT AGREEMENT CITYSFCRElARY (COADIERCrAL) 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 Sundance Square Management, L.P., acting herein by and through its duly authorized Johnny Campbell, President and CEO hereinafter referred to as "Licensee", Owner of the property located at 300 block of East 2"d Street and the 300 block of Jones Street("Property"). AGREEMENT 1. 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, 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: Two conduits crossing East 2"d Street on the east side of the Calhoun Street intersection. Three conduits crossing Jones Street on the south side of the 2nd Street intersection. One conduit going from pole to property at the southeast corner of Jones Street and 2"d Street intersection. The location and description of said Improvement and the encroachment is more particularly described in Exhibit "A", attached hereto, incorporated herein and made a part hereof for all purposes. 2. (FV.0C',GGP, G C C + Cai ll`1;C3i, K,IIAG��� 2014 ROW Encroachment Agreement-Commercial Page 0f 10 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 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 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". 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 2014 ROW Encroachment Agreement-Commercial Page 2 of 10 public or for any other public purpose. In this regard, Licensee understands and agrees that City shall bear no responsibility or liability for damage or disruption of 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 incurred 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 Three Hundred and Twenty-Five Dollars ($325.00). Upon execution of this Agreement and annually thereafter, Licensee agrees to pay a fee in the amount of$.56 per square/linear foot of the encroachment area. 7. The term 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 fails to remove the Improvement, Owner hereby gives City permission to remove the Improvement and any supporting structures and assess a lien on the Property for the costs expended by the City to remove such Improvement. 2014 ROW Encroachment Agreement-Commercial Page 3 of 10 9. 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 accordingly agreed that if the governing body of City may at any time during the term hereof determine 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. 2014 ROW Encroachment Agreement-Commercial Page 4 of 10 13. 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, servants, employees, contractors, subcontractors, licensees and invitees. The doctrine of respondeat 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. 14. 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 HIND 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 2014 ROW Encroachment Agreement-Commercial Page 5 of 10 LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. 15. While this Agreement is in effect, Licensee agrees to furnish City with a Certificate of Insurance, 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`B". 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 term 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 Licensees' contractors. 16. 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 2014 ROW Encroachment Agreement-Commercial Page 6 of 10 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, 17. In any action brought by the City for the enforcement of the obligations of Licensee, 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, privileges or duties under this contract without the prior written approval of the Director of Planning and Development. Any attempted assignment without prior written approval will be void. 19. THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 20. This Agreement shall be binding upon the parties hereto, their successors and assigns. EXECUTED thisol/l!1`day of Z) . 920/6 2014 ROW Encroachment Agreement-Commercial Page 7 of 10 City Licensee City of Fort Worth Sundance Square Management, L.P. By: By: Ran4e Harwood, irector Name:_Jol nny Cam ell Planning and Development Title: President and CEO ATTEST: Approved As To Form and Legality City eta ry Assistant City Attorney o� C9$ OFFICIAL RECOIL® CI'T'Y SECRETARY 2014 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, on this day personally appeared Johnny Campbell,President and CEO, 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 Sundance Square Management, L.P., and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this�,I_Alay of !'r�✓�� , 20 �5 . CHERYL W MWWMERY " . a NOTARY PUSUC i STATE OF TEWs �UmE' Notary i&ic in and fpr e State of Texas 2014 ROW Encroachment Agreement-Commercial Page 10 of 10 a • BLOCK 25B CITY CENTER ADD, i 1-2" PVC PRIVATE SECURITY B VOL. 988-149, ORIG PG. 81-82 1-3" PVC PRIVATE IRRIGATION PS..T.C.T. g z r-c mr u SU u ; I FOR (UM p.Ll�yeepgW e i •elt M Q WuwT(,1P.) .� pauf. .b• EAST 2ND STREET .e« r " �•� oho ..---- _ mace m ° II 1-2" PVC PRIVATE SECURITY METERED PEDESTAL I I 1-2" PVC PRIVATE POWER I :II I ;1,LLORIG 1-3" PVC PRIVATE IRRIGATION I ORIGINAL TO ( 2" ONCOR POWER TO I p III METERED PEDESTAL Mp •aR Q a M '" W' a e eoo o_o�eeee�oo® — eoeoee ............ a i o 0 EAST 3RD STREET :. .................................................................... ... ..-.............oma ..... 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N�...:�.:�.:..... . ......... ........:. ...:.... ..�p.... .��N. : .;�k.:...:. ... ... tirn s :....:...:....:.... ..C .. �.�.�..:�.:�. :...:. :... .. NO S ...:.........:. ....... . ...TO� 'O N�J�k �(3. A0 ...: ..:..... ... . ...... 590 ..... .......:.... oo.. ° 590 — 0+ 50 0+ 00 1 + 00 3 E. 2nd St. Extension Profile C-1 • ROW Encroachment ev®I\/' n ry• E. 2nd St. &Jones St. i Y y Fort Worth, Texas �^�E. —DAM SHEE�[-� civil engineering planning 1wm40'/1•-4' 01/2g/2016 G of 2 AC�® DATE(MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE 6/8/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTNAME: Amanda Villanueva Higginbotham Insurance Agency, Inc. PHONE 800-728-2374 Fa°'ct No, 500 W. 13th Street (AIE-MAIL avillanueva@higginbotham.net Fort Worth TX 76102 ADD SS @ ggInbotham.net INSURERS AFFORDING COVERAGE NAIC# INSURERA:Texas Mutual Insurance Company 22945 INSURED INSURER B:Hanover Insurance Company 22292 Scott Dennett Construction LC INSURERC:BITCO General Insurance Corporation 20095 2313 Cullen Street INSURERD:Torus National Insurance Company 25496 Fort Worth TX 76107 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 1535805567 REVISION NUMBER: THIS IS TO CERTIFY 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 OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILTR TYPE OF INSURANCE INSD WVD POLICY NUMBER ADDLSUBR POLICY EFF POLICY EXP LIMITS C X COMMERCIAL GENERAL LIABILITY CLP3620017 /30/2015 /30/2016 EACH OCCURRENCE $1,000,000 CLAIMS-MADE X❑ OCCUR DAMAGE TO RENTED PREMISES Ea occurrence $100,000 X PID Ded:$1,000 MED EXP(Any one person) $5,000 X XCU PERSONAL BADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 POLICYrx] E C LOC PRODUCTS-COMP/OP AGG $2,000,000 OTHER: $ C AUTOMOBILE LIABILITYCOMBINED SINGLE LIMIT CAP3620018 /30/2015 /3012016 Ea accident $1,000,000 X ANY AUTO BODILY INJURY(Per person) $ AUTOWNED SCHEDULED BODILY INJURY(Per accident) $ X HIRED AUTOS )( NON-OWNED PROPERTY DAMAGE $ AUTOS Per accident $ D X UMBRELLA LIAB X OCCUR 83799M150ALI /30/2015 /30/2016 EACH OCCURRENCE $5,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $5,000,000 DED I RETENTION$ $ A WORKERS COMPENSATION TSF0001220596 /4/2015 /4/2016 X PER OTH- AND EMPLOYERS'LIABILITY Y/N STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVEE.L.EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? ❑ N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYE $1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $1,000,000 B Builder's Risk IHD875586909 /12/2015 /12/2016 Any one location $5,000,000 Deductible:$2,500 Per Disaster $5,000,000 Leased/Rented$100,000 Transit $100,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Builder's Risk applies as required by contract. The General Liability and Automobile Liability policy includes a blanket automatic additional insured endorsement that provides additional insured status(including completed ops)and General Liability,Automobile Liability and Workers'Compensation policy includes a blanket waiver of subrogation endorsement to the certificate holder only when there is a written contract between the named insured and the certificate holder that requires such status. See Attached... CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Fort Worth ACCORDANCE WITH THE POLICY PROVISIONS. 1000 Throckmorton Fort Worth TX 76102-0000 AUTHORIZED REPRESENTATIVE ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: _ LOC#: ACAC ADDITIONAL REMARKS SCHEDULE Pagel of 1 AGENCY NAMED INSURED Higginbotham Insurance Agency, Inc. Scott Dennett Construction LC POLICY NUMBER 2313 Cullen Street Fort Worth TX 76107 CARRIER NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE The General Liability policy has a blanket Primary&Non Contributory endorsement that affords that coverage to certificate holders only where there is a written contract between the Named Insured and the certificate holder that requires such status. The General Liability and Auto Liability policies include a blanket notice of cancellation to certificate holders endorsement, providing for 30 days'advance notice if the policy is canceled by the company other than for nonpayment of premium, 10 days'notice after the policy is canceled for nonpayment of premium. Notice is sent to certificate holders with mailing addresses on file with the agent or the company.The endorsement does not provide for notice of cancellation if the named insured requests cancellation. Umbrella is follow form. Richard Garvey, Secretary/Treasurer, is excluded on Workers Compensation Policy Certificate Holder is insured as noted above and complete to read: City of Fort Worth, its'Officers, Employees and Volunteers. Auto policy is a Commercial Auto Policy. The general liability, auto liability and workers compensation policies include an endorsement providing that[30]days'notice of cancellation will be furnished to the certificate holder ACORD 101 (2008/01) ©2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD