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HomeMy WebLinkAboutContract 38900u1rY''(°�EiAF' ENCROACHMENT AGREEMENT 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 Energy Inc acting herein by and through its duly authorized T. Joy Webster hereinafter referred to as "Grantee", Owner of the property located at "Property"). WITNESSETH: 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 permission to construct/ install and/or aHow to remain, Improvement(s) ("Improvement") that encroaches upon, uses and/or occupies portions of the space under, on and/or above the streets, alleys, '. WORTH, T sidewalks and other public rights -of -way, such Improvement(s) are described as follows: At the lot located at 901 Commerce, Install 2- ducts across city ROW from the North side of 8th Street to South side of 8th Street. The ducts will terminate in the Binion O'Keefe building on the the North side of 8th and to a 18"x 30" hand hole on the South side of 8th Street. The ducts will be populated with fiber and copper cable that provide voice and data services, for XTO Energy use only. 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. 3. Upon completion of construction and installation of said Improvement and thereafter, there shall be no encroachments in, under, on or above the surface aI ea of the streets, alleys, sidewalks and other public rights -of -way involved, except as described herein and shown on the hereinabove referred to Exhibit . 4. 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 3 damage or disruption of improvements installed by Grantee or its successors, but City will make reasonable efforts to minimize such damage. In order Uluefray all costs %J 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 Seve" a S75. s� sum of Five Hundred, -five Dollars ($5ia). 7. The term of this Agreement shall be for thirty years, commencing on the date this Agreement is executed by the City of Fort Worth. Q 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 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. 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. 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. s 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 %J 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 C 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 RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. GRANTEE 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 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 $100,000 Bodily injury, per person $250,000 Bodily injury or death, per occurrence $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. E3 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 attorneys fees. 18. 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. 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. E EXECUTED thisday of lau, 2A il City City of Fort Worth Bv:-- Fi�NGNdo Cos�G 1 Assistant City Manager ATTEST: City Secr6 ary L� 3L21 Contract Auth.oriaatioR Date Grantee t2------ Title: .(C��_S�Ac{�=fiflc� L ris Approved As To Form And Legality Assistant City Attorney �¢�FFICIAL RECOr�I� ITY SECRETARY �i WORTH,, GA STATE OF TEXAS Is COUNTY OF TARK ANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared F(No"d0 dos-�,. 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. f GIVEN UNDER MY HAND AND SEAL OF OFFICE thisday of 20 09_. - EVONIA DANIELS /U�__ c.�J .�� �-l2.cl�/ MYCOJu 10,2013 RES ota Public in and for the Juty 10, 2013 ry State of Texas 11 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 --. � Iu�l v%jSZv ' € _ 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 stated. and in the capacity therein GIVEN UNDER MY OANU AND SEAL OF OFFICE this c:k%-- day of r,� tAtlAlt MICNEItlE � * STATE OF TEXAS PiM9Ca*m. 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n � O v � 5 �z ON ON mo uN C� ORA mm z� 00� n I V p m S D 0 _ Z < D 1'-0' 1 10' zD .,w L 7d JwH^ON �• �m"O n gig S �Om - txri it RIF all a o D ys R � a w mtz' OWN �® "m"i^u �^ m = x -Mx u- Roll[.0 Y m €a Nei '7A v'�' x NO �u9 N c of p m m r^ o n m oo " D a 0 0 4 Z =n I O > � o n �� F�—t.s• -r-, p � D 'B c a e n �2 O m S A � w m ro v >• w z o m n =m � o a oz00 -3 1?5 woaA r OOMm O n?S z 0 Wno V� xVal M m 0 I 0% Z = � am N NOti D O aoo= O 0 m>00 rZ O r x O 00 r0.m m W Z Z I Rny _ _ RIW CALHOUN STREET Electric �I 0 0 N n i6"W J + o ELECTRIC 6"SS N PROPOSED XTO HANDHOLE N o w O Exhibit "B" Cert ID 22341 ACORDCERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 6/29/2009 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Hub International Rigg ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 777 Main Street, Suite C-50 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Fort worth Tx 76102 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. (817) 820-8100 (817) 870-0310 INSURERS AFFORDING COVERAGE NAIC # INSURED INSURERA: Underwriter's at Lloyds 15792 XTO Energy Inc. INSURERB: Hartford Casualty Insurance Cc 29424 810 Houston Street, Suite 200 INSURER C: New Hampshire Insurance Cc 23841 Fort Worth TX 76102 INSURER D: Markel Insurance Company 38970 1 INSURER E: !'f)VFR�C�FC Inc 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. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSRADD' LTR E C POLICY NUMBER POLICY EFFECTIVE DATE MM/DD/YY POLICY EXPIRATION DATE MMIDDIYY IMITS A X GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE X❑ OCCUR 205330 4/1/2009 4/1/2010 EACH OCCURRENCE $ 1 000 000 -DAMAGE TO RENTED PREMISES Eaoccurence $ 1001 MED EXP (Any one person) $ 5, 000 PERSONAL & ADV INJURY $ 11000,000 GENERAL AGGREGATE $ 21000,000 GEN'L AGGREGATE LIMIT APPLIES PER: 17 POLICY PRO- LOC PRODUCTS - COMP/OP AGG $ 21000,000 B X AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS 46USNIY8502 7/28/2008 7/28/2009 COMBINED SINGLE LIMIT (Ea accident) $ 11000,000 X BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ X X PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGG $ $ A EXCESSIUMBRELLA LIABILITY X OCCUR CLAIMS MADE DEDUCTIBLE X RETENTION $ 10,000 205331 4/l/2009 4/1/2010 EACH OCCURRENCE $ 10, 000, 000 AGGREGATE $ 10,000,000 $ $ $ C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below WC1591645 9/28/2008 9/28/2009 X O7SLATTS OTH- ER E.L. EACH ACCIDENT $ 11000,000 E.L. DISEASE - EA EMPLOYE $ 11000,000 E.L. DISEASE - POLICY LIMIT $ 1, 000 , 000 D OTHER Oil Lease Property/ Boiler & Machinery MGMEOH1206 7/28/2008 7/28/2009 Oil Lease Property $10,000,000 Any One Occurrence DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS THE CITY OF FORT WORTH IS ADDITIONAL INSURED ON THE GENERAL LIABILITY AND EXCESS LIABILITY POLICIES AS REQUIRED BY WRITTEN AGREEMENT. CERTIFICATE HOLDER CITY OF FORT WORTH TRANSPORTATION AND PUBLIC WORKS DEPT. 1000 THROCKMORTON STREET FORT WORTH TX 76102 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR AUTHORIZED REPRESENTATIVE ACORD 2�001/08) Page 1 0£ I ©ACORD CORPORATION 1988 M&C Review Page 1 of 2 COUNCIL ACTION: Approved on 7/14/2009 Official sits <�t tine City of Fort: tr�io��tk�, ���:�xas DATE: 7/14/2009 REFERENCE NO.: C-23641 LOG NAME: 06ENCR XTO 910 COMMERCE CODE: C TYPE: CONSENT HEARING: NO SUBJECT: Authorize the Execution of an Encroachment Agreement with XTO Energy Authorizing Use of the Eighth Street Right -of -Way for the Installation of Underground Fiber Optic Cables to Extend Services from the Binyon O'Keefe Building Located at 800 Calhoun Street to the Currently Vacant Lot Located at 901 Commerce Street RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a standard Encroachment Agreement with XTO Energy for the installation of underground fiber optic cables beneath the Eighth Street right-of-way to extend services from the Binyon O'Keefe Building located at 800 Calhoun Street to the currently vacant lot located at 901 Commerce Street; planned to be developed into a structured parking garage with a few levels of office space. DISCUSSION: XTO Energy has requested use of the public right-of-way for the installation of two four inch ducts to run telecommunications and fiber optic lines from its building at 800 Calhoun Street to the currently vacant lot at 901 Commerce Street. These underground ducts will cross beneath the 8th Street right- of-way. The Encroachment Committee, consisting of staff from Transportation and Public Works Department, Water Department and the Planning and Development Department has reviewed and approved the proposed bore route beneath the 8th Street right-of-way for this purpose. The fee for the privilege granted by this Agreement will be $575. The term of the Agreement will be 30 years. The subject property is in COUNCIL DISTRICT 9. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that the Planning and Development Department is responsible for the collection and deposit of funds due to the City. TO Fund/Account/Centers GG01 421232 0062000 575.00 Submitted for City Manager's Office b� Originating Department Head: FROM Fund/Account/Centers Fernando Costa (6122) Susan Alanis (8180) http://apps.cfwnet.org/council�acket/mc review.asp?ID=11960&councildate=7/14/2009 7/30/2009 M&C Review Page 2 of 2 Additional Information Contact: ATTACHMENTS exhibits.PDF David Schroeder (2239) http://apps.cfwnet.org/council�acket/mc_review.asp?ID=11960&councildate=7/14/2009 7/30/2009