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HomeMy WebLinkAboutContract 41352ENCROACHMENT 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 and Development Department Director, hereinafter referred to as the "City", and The Carnegie Building, L.P., a Texas limited partnership acting herein by and through its duly authorized managing company — Sundance Sauare Manaaement. L.P hereinafter referred to as "Grantee", 425 West 3rd Street Owner of the property located at ("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 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 RECQRD CITY SECRETARY T. lN FORTH, TX I i sidewalks and other public rights -of -way, such Improvements) are described as follows: The sidewalk on W. 3d Street 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 accorAance 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. 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, Grantee agrees to pay to City at the time this Agreement is executed a fee in the sum of Two Hundred Seventy -Five Dollars ($275.00). 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. 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; thCAt 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 a11 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 respondent 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 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: $1,000,000 Commercial General Liability 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 cIeaning 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 0 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. 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. 0 EXECUTED this day of , 20 � � City City of Fort Worth By: ATTEST: Grantee The Carnegie Building, L.P., Approved As To Form And Legality io City Attorney OFFICIAL RECORD CITY SI�CRETARY FT. WORTH, TX 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 Randle Harwood, 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 20 IRMA SAENZ Notary Pubiic, State of Texas My Commis 2oon Expk20P2es January r Notary Public in and for the State of Texas I 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 K. Campbell , known to me to be the person whose name is subscribed to the foregoing instrumentI and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of The Carnegie Building, L.P. ,and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of �c p VN ; C.� 12010 . - A r * �..fill c Lk Notary Public in and for the State of Texas 12 l� W 3 J Q $ w t1j: LoLa Ld � � � � A z v 7Z w J J o nEDI.SJ J z 00. _u- _t�D L N 6' �.T T==nsw� a �. �� B f: AC 7 a I DAT (MWDDt/YYYY) CERTIFICATE OF LIABILITY INSURANCE 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 antl 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 �""""" Aon Risk Services Southwest, Inc. PHONE FAX Fort worth Tx office A C. No. Ext : (817) 810-4000 A C. No.: (817) 339-2019 301 Commerce Street E-MAIL Suite 2101 PRODUCER Fort Worth TX 76102 USA 10532782 ER IDINSURER(S) AFFORDING COVERAGE NAIC # INSURED INSURER A: Zurich American Ins Co 16535 The Carnegie Building, L.P. INSURERS: 201 Main Street, Suite 2700 Fort Worth TX 76102 USA INSURER C: INSURER D: INSURER E: INSURER F: CnVFRArAFR 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 B ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUC POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Limits shown are as requeste INSR TYPE OF INSURANCE ADD SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS A' GENERAL LIABILITY COMMERCIAL GENDERRAAFL LIABILITY CLAIMS -MADE I X I OCCUR Lp per Loc Agg $10mi1 Cap CPO398152507 4 01 2010 04 01 2011 EACH OCCURRENCE $19000, 000 DAMAGE TO RENTED PREMISES (Ea occurrence) $110001000 X MED EXP (Any one person) $5 , 000 PERSONAL &ADV INJURY $12000,000 X GENERAL AGGREGATE $21000,000 PRODUCTS-COMP/OP AGG $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO X LOC JECT AUTOMOBILE LIABILITY ANYAUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON OWNED AUTOS COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY ( Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE (Per accident) UMBRELLA LAB EXCESS LIAB OCCUR CLAIMS -MADE EACH OCCURRENCE AGGREGATE DEDUCTIBLE RETENTION WORKERS COMPENSATION AND EMPLOYERS'LIABILITY YIN ANY PROPRIETOR / PARTNER I EXECUTIVE OFFICERIMEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below NIA WC STATU- TO LIM S OTH- IFR E.L. EACH ACCIDENT E.L. DISEASE -EA EMPLOYEE E.L. DISEASE -POLICY LIMIT DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) sign Encroachment --400.Block of W. Third Street, Fort Worth, TX CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE VNLL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Fort worth AUTHORIZED REPRESENTATIVE 1000 Throckmorton Fort worth TX 76102 USA [� eXKL+9d c�Vitt,YGLtO e./Gil6�EG�4 ✓72CI. ACORD 25 (2009/09) ©1988-2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD G) v 0 2 a 420 TRROCXIfORTON, SUITE 910 FORT AORTH TRXAS 78102 FAX FAX �817j 338-2919 81777 339-2913 I: 11 il:' llJ SITE PLAN FOR CARNEGIE OFFICE BUILDING BENCHMARK BXWIN MC ]fP O�AE N.® AI tIC MMn/A6) H1C44CtXH tK FD AhlJ IAttUt LIEN-AI615' M-I 1[IG MAt' bldU Cb MIJ IIEY•6/AA7 (D-I QR (%O53 NOTICE OF MERGER City Secretary Contract Nos. 29737; 34361; 34362; 35489; 37891; 37998; 41040; 41352; 41738 THIS NOTICE OF MERGER (the "Notice") is being delivered to THE CITY OF FORT WORTH, a Texas home -rule municipal corporation (the "City") by SUNDANCE PLAZA PROPERTIES LLC, a Texas limited liability company ("Sundance") as of the 16"' day of December, 2016. 1. The City entered into those certain Right of Way Encroachment Agreements set forth on Exhibit "A" attached hereto (collectively, the "Encroachment Agreements") with Sanguinet Building, L.P.,- a Texas limited partnership ("Sanguinet") and The Carnegie Building, L.P., a Texas limited partnership ("Carnegie"). 2. Pursuant to that certain Certificate of Merger filed December 5, 2016 and recorded as Instrument No. D216283511 in the Real Property Records of Tarrant County, Texas, Sundance is the successor -in -interest by merger to Sanguinet and Carnegie. 3. Sundance hereby notifies the City of the merger and acknowledges that Sundance (as successor -in -interest by merger to Sanguinet and Carnegie) is now the "Grantee" under the Encroachment Agreements and delivers updated Certificates of Insurance for Sundance for the Encroachment Agreements attached hereto as Exhibit "B". SUNDANCE: SUNDANCE PI a Texas limited li By: J PERTIES LLC, President CSC Nos. 29737; 34361; 34362; 35489; 37891; 37998; 41040; 41352; 41738 Notice EXHIBIT "A" ENCROACHMENT AGREEMENTS 1. Consent Agreement for Signs, City Secretary Contract No. 29 73 7, filed on May 21, 2004 and recorded as Instrument No. D204157605 in the Real Property Records of Tarrant County, Texas, 2. Consent Agreement for Signs, City Secretary Contract No. 34362, filed on December 295 2006 and recorded as Instrument No. D206411316 in the Real Property Records of Tarrant County, Texas. 3. Consent Agreement for Signs, City Secretary Contract No. 34361, filed on December 29, 2006 and recorded as Instrument No. D206411315 in the Real Property Records of Tarrant County, Texas. 4. Encroachment Agreement, City Secretary Contract No. 35489, filed on July 13, 2007 and recorded as Instrument No. D207245083 in the Real Property Records of Tarrant County, Texas. 5. Encroachment Agreement, City Secretary Contract No. 37891, filed on November 7, 2008 and recorded as Instrument No. D208420633 in the Real Property Records of Tarrant County, Texas. 6. Encroachment Agreement, City Secretary Contract No. 37998, filed on December 5, 2008 and recorded as Instrument No. D208446758 in the Real Property Records of Tarrant County, Texas, 7. Encroachment Agreement, City Secretary Contract No. 41040, filed on November 12, 2010 and recorded as Instrument No. D210281603 in the Real Property Records of Tarrant County, Texas, 8. Encroachment Agreement, City Secretary Contract No. 41352, fled on January 21, 2011 and recorded as Instrument No. 13211017977 in the Real Property Records of Tarrant County, Texas. 9. Encroachment Agreement, City Secretary Contract No. 41738, filed on May 6, 2011 and recorded as Instrument No. D211107372 in the Real Property Records of Tarrant County, Texas. CSC Nos. 29737; 34361; 34362; 35489; 37891; 37998; 41040; 41352; 41738 Notice 2 EXHIBIT "B" CERTIFICATES OF INSURANCE (see attached) CSC Nos. 29737; 34361; 34362; 35489; 37891; 37998; 41040; 41352; 41738 Notice 3 DATE(MM/DDNYYYI A CERTIFICATE OF LIABILITY INSURANCE I 12,14/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE co 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. to IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or 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 Aon Risk Services Southwest, Inc. Fort worth TX office 301 Commerce Street suite 2370 Fort worth TX 76102 USA INSURED Sundance PlaZa Properties LLC 201 Main Street, Suite 2700 Fort worth TX 76102 USA ocn. c�nnan (817) 810-4000 E MAIL ADDRESS: INSURER A: ZU INSURER B: INSURER C: INSURER D: INSURER E: INSURER F INSURERS) AFFORDING COVERAGE American Ins Co (817) 339-2019 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. Limits shown are as requested LTR A TYPE OF INSURANCE X COMMERCIAL GENERAL LIABILITY INSO WVD POLICY NUMBER CPO — MMIDDNYYY MMIDDNYYY LIMITS EACH OCCURRENCE $1 , 000, OOO DAMAGE TO RENTED PREMISES Ea occurrence)� $1 , 000, 000 -7 CLAIMS -MADE X❑ OCCUR MED EXP (Any one person) $ 5 , 000 PERSONAL &ADV INJURY $1,000,000 GENERAL AGGREGATE $2 , 000, 000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- LOC JEC7 PRODUCTS -COMP/OP AGG $2 , OOO, OOO OTHER: COMBINED SINGLE LIMIT AUTOMOBILE LIABILITY Ea accident BODILY INJURY ( Per person) ANY AUTO OWNED SCHEDULED BODILY INJURY (Per accident) PROPERTY DAMAGE AUTOS ONLY AUTOS HIRED AUTOS NON -OWNED ONLY AUTOS ONLY Per accident UMBRELLA LIAB OCCUR EACH OCCURRENCE EXCESS LIAB CLAIMS -MADE AGGREGATE DED RETENTION WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER EXCLUDED? ❑ (Mandatory in NH) N I A STATUTE OT E.L. EACH ACCIDENT E.L. DISEASE -EA EMPLOYEE If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: Contract# 41352 Certificate Holder is included as Additional insured as required by written contract, but limited to the operations of the Insured under said contract, per the applicable endorsement with respect to the General Liability policy. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Cl ty Of Fort Worth I AUTHORIZED REPRESENTATIVE 1000 Throckmorton Fort worth Tx 76102 USA tf:� „ ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD a