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HomeMy WebLinkAboutContract 34788ENCROACHMENT AGREEMENT �fTY �E��E-�-���r � • {" L nI��TRAG7" �p , 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 City Manager or duly designated Assistant City Manager, hereinafter referred to as the "City", and XTO Enerqv, Inc acting herein by and through its duly authorized Vice President of Facilities hereinafter referred to as "Grantee", Owner of the property located at 110 West 7t" Street, Fort Worth, Texas 76102 ("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 peri�nission 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: i-, �•I r c-� n1 � '�J' J J i`.��:Er�� �'iJI �✓�Y�'�) V ��`���1� �,'J�':��i�,lyl�/,J li l,J ;f � VI . Il }: } �J4U� �.'����JuGI;Jl UI?�� � �. o * Clock projectinq over sidewalk * 3rd floor cornice projectinq over sidewalk * Canopies proiectinq over sidewalks * Canopies projectinq over allev * Wall lanterns proiectinq over sidewalk * Handrails at Houston St. Entrance * Existinq 10th floor cornice proiectinq over sidewalk 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. 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. 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". � Grantee, 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, Grantee 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 public or for any other public purpose. In this regard, Grantee understands and agrees that City shall bear no responsibility or liability for damage or disruption of improvements installed by Grantee or its successors, but City will make reasonable efforts to minimize such damage. 6. ''' � ,_ �, c �' %_., C.��Ji'�o+1.�` 1:5�.��J1�:� v����� �'��';��L��(; � ��1 � •.,n r� U� +r S �i'�i��'I�:' i: Ci i � I �J � ..:;''Ja fi� ��. 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: Four Hundred, Eiqhty-five and no/100 Dollars ($485. 00). r� The term of this Agreement shall be for thirty years, commencing on the date this Agreement is executed by the City of Fort Worth. : 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. It is understood and agreed to by Grantee that if this Agreement terminates because the Business ceases to operate and Grantee 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. �l It is further understood and agreed upon between the parties hereto that the City streets, alleys, sidewalks and other public rights-of-way, including the portions of such streets, alleys, sidewalks and other public rights-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 streets 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 streets for the use and benefit of the public. It is accordingly agreed that if the governing body of City should at any time during the term hereof determine in its sole discretion to use or cause or permit the said portions of the streets, alleys, sidewalks and other rights-of-way to be used for any other public purpose, including but not being limited to underground, surface or overhead communication, drainage, sanitary sewerage, transmission of natural gas or electricity, or any other public purpose, whether presently contemplated or not, then this Agreement shall be automatically canceled or terminated. 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 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. 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. 14. GRANTEE 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 GRANTEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBI SUCH CLAIMS OR SUITS. GRANTEE SHALL LIKEWISE ASSUME ALL ,-�. -.� � e, i •� � C� r !�,,; � � �I - � ��,� � ,, � �Y.��F1Ua�'�� IA,B�F�;It�`� � �. �r ! �,q�� _���, c .. �:.,,..`_'�=�1�U lU, :���':i1:,�Jt� U�2G�`� 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 GRANTEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. 15. While this Agreement is in effect, Grantee 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: Property damage, per occurrence Bodily injury, per person Bodily injury or death, per occurrence $100,000 $250,000 $500,000 with the understanding of and agreement by Grantee that such insurance amounts shall be revised upward at City's option and that Grantee shall so revise such amounts immediately following notice to Grantee 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". Grantee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement. Grantee 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 Grantee's contractors. 16. 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. 17. In any action brought by the City for the enforcement of the obligations of Grantee, City shall be entitled to recover interest and reasonable attorney's fees. i: 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. i� 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. i ' �� �r' `. �-� r �,�� _� � , � ,. EXECUTED this �,��.� ` �ay of _ �_ \� � (_,�, �.��- , 20�. � � CITY OF FORT WORTH, GRANTOR XTO ENERGY, INC., GRANTEE � i� � l - By. ;r ,C,,�` By. � � Da e Fissele ,� ssistant City Mgr Joy W bster, ice President of Facilities ATTEST: � � . City Secr ary �r �-! �l��C.J , Cc�nti aC'i_ }1ut�.OX'i.28At],p� __�� _��� llate APPROVED AS�O FORM AND LEGALITY SSis-l-a�fi City Attorney �����v�f` � �:����'�''D „ ,,� f v � �, � � �l; �� � r �� � ' ����'1�' ��� �'y+y?`✓j�����i ���`�� ;f STATE OF TEXAS COUNTY OF TARRANT 0 BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Dale Fisseler, 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. GIVEN UNDER MY HAND (,Llti�,l-L1�l-' , 20�. AND SEAL OF OFFICE this C� �� day of �C� , ,����� Notary Public in and for the State of Texas ��`�a^_�_ �.?_�tus,c.;tt�ncrts c.• .,,..�. i . �� _ :�s�_� . ..�. � ; �;tN;� i;�,.;�, AiV�1 L. 6R�S�(`�C) _ �.: -+ � (� a�c;tr,r�r ,��s�aiie ���,; � Y�i 1��� ��� �' �.�`�'� C�F i�."��,c4�3 � � d �` � >''`�......s`F4%` , � �„"sy CGr;f�n, cxo ;,r - �« ` �,-_-;�;._�., .a:l' ^,sF���,°i��' , . . ::..<��_,::-. , ::::..:.:.. ::.: .-:: ,-- .......,.- ,:,..,.,�-:;::�_. . i;'`�'f�'��1%�=�!�� �iSI�U:�''�� �.��;1 u�.i� 5�r�} r�„��l ��u �l' :��:!��iSl��i� �y� ,,�.;;,,�,, 11 �r`Z,� � U� ':-� �;-'.:�Ti,� `U_�./,�. ,._� 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 Joy Webster, Vice President of Facilities, 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 XTO Energy, Inc., and in the capacity therein stated. 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Nq7tZR to TMu� �CNT1Her'IE Na�vEp FUEMFp rD Thii Rf.Ri', 8� FAIWR4' Tp IX? S�:NALi. 1f780 T!lROCl�Terl �TAEY� HAP�98 N4 Uf1�A11QH UR WABILRY oF ANY qNG IIPON 7Fi81NBU4iER� R'a MJ�iYB Ofl B�oOEF(PATtVEQ. �Gu'L 9TOii'PR'd7c 76101 AurMoilIZEDREP11IEdRMRAmrE 'r� A A�CiiR 2b (2DD1108�� 0►ACORO dQFiPQRIlfION 188d p.,,.. , ..� , x�+�; � ' A •� � �J f�liP�RT�ttdT If tf►e �artificate hold�r is dn ADDfY1QNAL IlV�URED, Zhe pnlicyiiesi must be endarsed. A etatement �h �him r•�rtiFoeta dooc not r,onfer rights ta the cenifiC�t6 h0ld8r in Neu af su��'1 6ntlClfSertient(5). If SUHR9�iAi'�DN i& WAftlFp, cubjeci m the [erms and CDiiditlDflB Df (Fts polioy, CBReltS pOlicie� rtlay !'eqUif9 �n andorsament. A statement on tnis cRrti�cate doss not aanfer �iehts ta the carciticata trolder in Iieu nf such endorsemantls). IRIfi�tAIMkR The Ceraii�afn ot Inautanon nn cha rovsrRo sida of fhis fnrnR daes rrnt constitu.e a conir8ot �9tW9►�r che Fssuing inaurarlsl, authnrizad rapresentative or pradu�Rr, and tfte esrtitlr.s�e hDlder, nor doa� it affirmativety �r negativ�ly amon�, extend ar alter the coverag� affarded by thn po�iciac fiet� there�r�. ���,; b; t � i3 Zp'�� City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 6/13/2006 DATE: Tuesday, June 13, 2006 LOG NAME: 06XT0 REMODEL SUBJECT: Authorization to Enter into an Encroachment Agreement with XTO the Right-of-Way for Various Encroachments at 110 West 7th Street RECOMMENDATION: Page 1 of 2 REFERENCE NO.: **C-21500 Energy, Inc., Authorizing Use of It is recommended that the City Council authorize the City Manager to enter into an Encroachment Agreement with XTO Energy, Inc., authorizing use of the right-of-way for various encroachments at 110 West 7th Street. DISCUSSION: XTO, Energy, Inc., is renovating the Baker Building facade addressed at 110 West Seventh Street. In July 2004, XTO made application and paid appropriate fees for an Encroachment Agreement to restore the features of the original facade. The Downtown Design Review Board had approved the revisions/remodeling via DG03-36 on September 25, 2003. The agreement was never executed after additional documents were requested from the applicant and most of the improvements have since been made. XTO realized this oversight and resubmitted their application in March of 2006. The Encroachment Agreement is for multiple projections beyond the building property line above the sidewalks around the building and including the alley to the east of the building. They are listed below: 1. A four-sided clock mounted approximately 23' 1" above the sidewalk at the corner of Houston Street and Seventh Street projecting 6' 0" beyond the current building property line. 2. A cornice mounted approximately 36' 6" above the sidewalk for the entire length of building on both Houston and Seventh Street elevations projecting 3'0" and beyond the current building property line. 3. A stone canopy above the main entrance to the building on Seventh Street mounted approximately 11' 7" above the sidewalk projecting 1' 0" beyond the current building property line. 4. A stone canopy above the first floor entrance on Houston Street mounted approximately 11'0" above the sidewalk projecting 1'8" beyond the current building property line. 5. Two separate fabric canopies mounted 8'0" above the walk in the alley projecting 3'0" beyond the building property line into the alley. These canopies will help protect the two new doors into the alley from rain infiltration. 6. A total of nine wall-mounted sconces of which seven are located on Seventh Street and two are located on Houston Street. They project 1'6" over the property line with the bottom of surface mounted a minimum of 7'10" above the sidewalk. 7. Four floor supported handrails as required by the building code at the Houston Street entrance, which will project 2'0" beyond the property line. http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 2/5/2007 Page 2 of 2 8. An existing cornice to remain which projects approximately 3'0" over the property line at approximately 125'6" above the sidewalk on Houston Street and Seventh Street sides. The Encroachment Committee has reviewed this request and recommends approval. The encroachments will be in COUNCIL DISTRICT 9. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that this action will have no material effect on City funds. TO Fund/Account/Centers Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: FROM Fund/Account/Centers Dale Fisseler (6266) Bob Riley (8901) Bob Riley (8901) http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 2/5/2007