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HomeMy WebLinkAboutContract 40461ciTr SECRETARY � LL connw+cr Na. 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 Planning 6Vq ereinafter referred to as the "City", and eer �P�CUS • t' RYl ©h10 �1 1 J F� 2 Sn ip , acting herein by and through its duly authorizedft O CA�or-cC hereinafter referred to as "Grantee", Owner of the property located at 3! �d (lntvers;�-"Property„). sff W rA) 7X 76101 WITNESSETFi: 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 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, OFFICIAL RECORD CITY SECRETARY 6-21 sidewalks and other public rights -of -way, such Improvements) are described as foNows, The sidewalk on the west side of the building is being modified to accommodate a new pair of exit doors being installed. The sidewalk is lower than the finish floor of the building, thus it needs to be raised to create a landing and sloped transition to provide a safe means o£ egress for the occupants. The sloped portion of the sidewalk will not exceed 5%, and will merge with the existing sidewalk to maintain a smooth pedestrian flow. 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 ail 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. 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. 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. Gity 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. 6. In order to defray all costs of inspection and supervision which Gity 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 `1�i�o �r�i .�ea✓cyw� F'✓� Dollars ($ S:ao ). 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. 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. 0 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 Legislatures and that City cannot contract away its duty and its legislative power to control the public rigWof-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 A 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. 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 6 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 Fl described in Exhibit "A". The amounts of such insurance shall be not less than the following: $1,000,044 Commercial Genera{ i_iability 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 cance{ed 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. E: 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 DUTCES AND OBLIGATION CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. za. This Agreement shall be binding upon the parties hereto, their successors and assigns. 9 Sl , EXECUTED this day of 2010 ` - City City of Fort Worth Planning and Development ATTEST: City Grantee (Business Name) K Row TCN 41 L. Name: Title' lao PteSi et6 P, 0640, 0ti10 /M�-><ed q�,q,.al r"e, Approved As To Form And Legality City OFFICIAL RECORD CITY SECRETARY T. WORM TX 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 Susan Alanis, 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 AND SEAL OF OFFICE this day of Q� , 20 Notary Publi in and for the State of Texas ANGELA ESTRADA Notary Public, State of Texas My Commission Expires August 21, 2011 11 STATE OF V '10 § COUNTY OF AMILT0,V BEFORE ME, the undersigned authority, a Not�ar�y Public in anrd for the ���o f aTYicia � �Sh State of Texaa, on this day personally appeared 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 G.A. IVEN UNDER MY HAND AND SEAL OF OFFICE this day of OL 201(. Notary Public in and for t1 e State of Toxas ohl a 12 Linda L. Campbell Notary Public, State of Ohio My Commission Expires 1145.2014 Exhibit "B" MEMORANDUM OF INSURANCE --,ATE OF ISSUE: o4lzvzoo PRODUCER: COMPANIES AFFORDING COVERAGE A & B: (CASUALTY) MARSH - CHICAGO COMPANY A ACE AMERICAN INSURANCE COMPANY LETTER C: (PROPERTY) -- AON - CHICAGO AON RISK SERVICES CENTRAL, INC. ILLINOIS UNION INUSRANCE CO. ILLINOIS DIVISION COMPANY B 200 E. RANDOLPH STREET LETTER CHICAGO, IL 60601 INSURED: COMPANY C FACTORY MUTUAL INSURANCE COMPANY THE KROGER CO., ITS SUBSIDIARIES AND LETTER AFFILIATES 1014 VINE STREET COMPANY D CINCINNATI, OH 45202 LETTER .COVERAGES This memorandum is furnished to you as a matter of information for your convenience. It is not intended to reflect all the terms and conditions or exclusions of such policies, This memorandum is not an insurance policy and does not amend, after, or extend the coverage afforded by the listed policies, The insurance afforded by the listed policy is subject to all the terms, exclusions and conditions of such policies. CO TYPE OF INSURANCE POLICY EFF. EXP• LIMITS SHOWN ARE AS REQUESTED LTR NUMBER DATE DATE COMMERCIAL GENERAL LIABILITY XSL G24939698 1/25110 1125111 GENERAL AGGREGATE $ 3,000,000 X COM GEN LIABILITY PRODUCTS•COMPIOP AGG $ 3,000,000 CLAIM OCCUR PERSONAL & ADV INJURY $ 2,000,0o0 A OWN & CONT PROT EACH OCCURRENCE S 2,00000 X OCCURRENCE FORM FIRE DAMAGE (Any fire $ 2,o00,000 MED EXPENSE (Anyone person) $ AUTOMOBILE LIABILITY A ANY AUTO, HIRED AUTOS. ISA H08584163 1/25110 1/25/11 COMBINED SINGLE LIMIT $ 53000,000 NON•OWNED AUTOS, PHYSICAL DAMAGE SELF - INSURED ISA H08584163 1125110 1/26111 AUTO ONLY $ 3,000,000 GARAGE LIABILITY AGGREGATE $ 310000000 A ANY AUTO EXCESS LIABILITY X00 G24905202 1/25110 1/25111 A X UMBRELLA FORM EACH OCCURRENCE $ 5,000,000 OTHER THAN UMB AGGREGATE $ 500001000 WLR C46131411 1/25/10 1[25111 I] STATUTORY LIMITS (CT, DE, FL, ME, EACH ACCIDENT $ 21000,000 MD, MN, MA, MO, DISEASE— POLICY LIMIT $ 2,000,000 WORKERS' NJ, NY, SD, RI, VA) DISEASE —EACH EMPLOYEE $ 2,000*000 COMPENSATION/ A EMPLOYES LIABILITY THE SCF C4613142435 PROPRIETOR/ PARTNERS (WI) EXECUTIVE OFFICERS AREINCLUDED WCU C46131423 (ALL OTHER STATES) PREMISE POLLUTION PPL G21977020 007 511110 511111 PER CLAIM $ 10,o00,0o0 B LIABILITY ALL CLAIMS S 201000,000 MASTER STORAGE TANK UST G2181037A 007 5/1/10 5/1/11 PER CLAIM $ 110006000 B THIRD PARTY LIABILITY ALL CLAIMS S 2,000,000 C PROPERTY UW348 6130/09 6130/10 PER OCCURRENCE I $ 1090001000 RESCRIP_TION OF'OPERATIONSLLOCA i IbNsiV HieLtSISPECM JTEM& ADDITIONAL INFORMATION °GL Policy No. XSL G24939698 is subject to a self insured of $3,000,000. WC Policy No. WCU 044360307 is subject to a self insured retention of $2,000,000, GENERAL LIABILITY: Coverage includes Liquor Liability and Professional i Druggist's Liability. CARGO LIABILITY: Coverage is self insured by The Kroger Co. Any party with which the Named Insured is contractually required to include as Additional insured is automatically granted such status but only with respect to acts, errors and omissions of the Named Insured unless otherwise specified by contract; Additional Insured -Vendors Endorsement is also automatically granted such status where required. However, coverage under the policy only applies to the extent of the coverage required by such contractual requirement and for the limits of liability specified in such contractual requirement, but in no event for insurance not afforded by the policy nor for limits of liability in excess of the applicable limits of liability of the policy. The existence of more than one Insured or Additional Insured or other Interests shall not serve to increase the limits of liability of the policy. All risk including bolter and machinery, business Interruption and extra expense; all real and personal property; replacement cost. Seir•lnsured Retention of USD $25,0001000 Any party with which the Named Insured has a contractual requirement to be Included as an Additional Insured, Loss Payee, Mortgagee or Trustee shall automatically be granted such status under this Policy. °The above shall also apply to any parties that the landlords of the Named Insured have a written agreement for such interest(s) with respect to property insured hereunder. However, coverage under the policy only applies to the extent of the coverage required by such contractual requirement and for the limits of liability specified in such contractual requirement, but in no event for insurance not afforded by the policy nor for limits of liability in excess of the applicable limits of liability of the policy. The existence of more than one Insured or Additional Insured or other interests shall not serve to increase the limits of liability of the policy. USD $10,000,000 aggregate limit for Earthquake / Flood where required by contract. Coverage Includes a building ordinance extension. The policy automatically waives subrogation if such rights are waived by written contract prior to loss by the insured. The policy Includes "Rents Terrorism coverage is included per TRiA provisions, as required by workers compensation statutes. The Named Insured Includes The Kroger Co. and its subsidiaries Including, but is not limited to the following: Dillon Real Estate; Fred Meyer Stores, Inc.; Quality Food Centers; Ralphs Grocery Co.; Smiths Food and Drug Centers, Inc.; Kroger Limited Partnership I; The Kroger Co of Michigan; Topvatco, Inc; Kroger Limited Partnership If; King Soopers, Inc.; Fry's Food Stores of AZ, Inc.; Dillon Companies, Inc.; Jackson Ice Cream Co., Inc.; Bell Markets, Inc.; Cale Foods, Inc.; Kwik Shop, inc.; Mini Mart, inc.; Food 4 Less Holdings, Inc.; Turkey Hill Minit Markets, Turkey Hill L.P. h ltpsJlaonline.aon.com/