Loading...
HomeMy WebLinkAboutContract 39837cary sEct-in CORk!YFAACI 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 and Development Department Director, hereinafter referred to as the "City", and Kroger Texas L.P., an Ohio limited d/b/a, an Ohio limited partnership d/b/a Vandervoort Dairy Foods Co. acting herein by and through its duly authorized general partner, ICRGP Inc., an Ohio Corporation, and through its duly authorized Vice President hereinafter referred to as "Grantee", Owner of the property located at 900 S. Main ("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, Improvements) (66Improvement") 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: Installing light poles & bases (3) on Galveston Avenue (1) on Terrell Avenue_ 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 m 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 existmg 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. 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 Azar; 00 sum of Two Hundred Forty -Five Dollars ($245.00). 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. 8. 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. 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 herem shall be construed as creating a partnership or Joint enterprise between City and Grantee. 14. GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES OFFICERS, AGENTS, SERVANTS AND EMPLOYEE S, 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 TRESPASSE RS. 15. While this Agreement is m 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 msurance covering all public risks 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 m 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 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. 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 TEIRMINATION OF THIS AGREEMENT. 20. This Agreement shall be binding upon the parties hereto, their successors and assigns. EXECUTED this4:k4‘ day of City City of Ford Worth By: Susanr Alanis , �� , Director Planning and Development Grantee (usiness Narne) Kroger Texas L.P. ) By: KRGP Inc. , its general partner ATTEST: City S`- retary NO M&C REQUIRED Name: Title: a 40o0Ap 4141 By: j HoOffn °:` = tiVo is iCio a Approved As To Forrn And Legality L$� 64 nt City Attorney Pi 0° evas OFFICIAL RECORD CITY SECRETARY FT. WORTH, 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 1 day of Notary P ':lic in and for the State of Texas t0a"'P,% . ANGELA ESTRADA Notary on Expires State of as August 21, 2011 STATE OF OHIO COUNTY OF HAMILTON § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared faint& e Picose, known to me to be the person whose name is subscribed to the foregomg instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of V ((SA' rt- stated. , and in the capacity therein GIVEN UNDER MY HAND AND SEAL OF OFFICE this Ad. day of `71.4 I ,2006/ . Jinni r ainrald Notary Public in and for the State of Ohio JENNIFER JONES Notary Public, State of Ohio My Commission Expires Nov. 21, 2009 300 W TerrelfAv CT: CT: 1 DAV 5111101 1,9 tr) 0 c CD AV uoisattieo Terrell e aa tr) 0 eAv uoisemeo .1220 JeF_;us BBQ 150 W Pulaski St Vindervc; - —Da $ & $ Olheel Alignment; A .02F177, Cop a Cabana reJI Ave a Main Station Advertising 100 J 03 TeTeI. E Oast- ...vac 2CO Top Inn WHEEL STOP NOT TO SCALE RUi DEAD Dwelt Ee 0.9 D IECTiD DT LAVDCceeed A OT�CLL CAMLC .NTH LNNk UDR Tott • CU UDC OTAYp LAC4 RJ OCR-CtlC AT�� mittr-44 CT To 01ILDOT CR?1N I TO r ADOvnr Iow OwADe� LATkN DAMN .1' ARDN LATE Eft, AIME< 6'OS1 OA .t.tin'. METAL •r 0 eJ Lo rratOTH O'eDLC01 OCnRT Oe TREE PO TREE PLANTING SCALE. 1/2'n1-0' 3 SITE PLAN AT TERRELL CLOSING T y.4 L Mt NO, SCALE. 1'•20 ZONING CASE o ZC-005-046 APPROVED BY DEVELOPMENT DIRECTOR CITY OF FORT WORTH Quorum Deslyr Spaces. Peaple. Architecture l nterior a•slit ]0]4: NrNt NM n01 hteirie Tech /E iO4 01.Ofa D.1-0111 1.:S112 ]JtlNf:1 THIS Do:IP'ENT 1551P.P 4010E i5 rOR T^.5._'.HINARY RWTU1 ait .FDER Tli AutH/En4 cr HILLIAH H.31.ANKEt&I P. R^SStRATIGN r145. IT I:. NOT*oD Lco FOR ✓0\5TR4E00R -AERIOAT.ON JFri 05E5. PROJECT NO. 0411: DATE, R.:17.2GOG FlLE NAME. REVISIONS. SHEET TITLE, SITE PLAN AT TERRELL CLOSING A1.01 MEMORANDUM OF INSURANCE DATE 12/18/2009 This Memorandum of Insurance is issued as a matter of information only to authorized viewer s for their internal use only and confers no rights upon any viewer of this document. This document does not amend, extend or alter the coverage described below. This Evidence may only be copied, printed and distributed within an authorized viewer and may only be used and viewed by an authorized viewer for its internal use. Hays Companies shall be under no obligation to update such information. PRODUCERS A & B: (Casualty) Marsh — Chicago C: (Property) Hays Companies - Chicago COMPANIES AFFORDING COVERAGE Insurer A 'Ace American Insurance Company INSURED The Kroger Co., its subsidiaries and affiliates 1014 Vine Street Cincinnati, Ohio 45202 United States Insurer B Illlinols Union Insurance Co Insurer C 'Factory Mutual Insurance Company Insurer D COVERAGES 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 DOCUMENT 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. CO LTR A A A A A B TYPE OF INSURANCE GENERAL LIABILITY COMMERCIAL OCCURRENCE FORM AUTOMOBILE LIABILITY ANY AUTO HIRED AUTOS NON -OWNED AUTOS PHY. DAMAGE SELF - INSURED GARAGE LIABILITY ANY AUTO EXCESS LIABILITY UMBRELLA FORM WORKERS COMPENSATION / EMPLOYERS LIABILITY THE PROPRIETOR / PARTNERS / EXECUTIVE OFFICERS ARE INCLUDED PREMISE POLLUTION LIABILITY POLICY NUMBER XSL G23747820 ISA H08249453 ISA H08249453 XOO G23865518 WLR C44366344 (CT, DE,FL,ME, MD,MN,MA,MO, NJ NY,SD, RI,VA) SCF C44366381 (WI) WCU C44366307 (All Other States) PPL G21977020 006 POLICY EFFECTIVE DATE 01/25/09 01/25/09 01/25/09 01/25/09 01/25/09 05/01/09 POLICY EXPIRATION DATE 01/25/10 01/25/10 01/25/10 01/25/10 01/25/10 05/01/10 LIMITS LIMITS IN USD UNLESS OTHERWISE INDICATED GENERAL AGGREGATE PRODUCTS - COMP/OP AGG PERSONAL AND ADV INJURY EACH OCCURRENCE FIRE DAMAGE (ANY ONE FIRE) MED EXP (ANY ONE PERSON) COMBINED SINGLE LIMIT BODILY INJURY (PER PERSON) BODILY INJURY (PER ACCIDENT) PROPERTY DAMAGE AUTO ONLY (PER ACCIDENT) USD $3,000,000 USD $3,000,000 USD $3,0001000 USD $3,000,000 USD $2,000,000 USD $5,000,000 USD $3,000,000 OTHER THAN AUTO ONLY: EACH ACCIDENT AGGREGATE EACH OCCURRENCE AGGREGATE WORKERS COMP LIMITS EL EACH ACCIDENT EL DISEASE - POLICY LIMIT EL DISEASE EA. EMPLOYEE PER CLAIM ALL CLAIMS USD $3,000,000 USD $5,000,000 USD $5,000,000 Statutory USD $2,000,000 USD $2,000,000 USD $2,000,000 USD $10,000,000 USD $20,000,000 The Memorandum of Insurance serves solely to list insurance policies, limits and dates of coverage. Any modifications hereto are not authorized. MEMORANDUM OF INSURANCE PRODUCER A & B (Casualty) Marsh — Chicago C (Property) Hays - Chicago B C MASTER STORAGE TANK THIRD PARTY LIABILITY PROPERTY UST G2181037A 006 UW348 INSURED The Kroger Co., its subsidiaries and affiliates 1014 Vine Street Cincinnati, Ohio 45202 United States 05/01/09 6/30/09 05/01/10 6/30/10 PER CLAIM ALL CLAIMS PER OCCURENCE ADDITIONAL INFORMATION *GL and WC Policy Number WCU C44366307 are subject to a self insured retention of USD $2,000,000. GENERAL LIABILITY: Coverage includes Liquor Liability and Professional/ Druggist's Liability. CARGO LIABILITY: Coverage is self insured by The Kroger Co. DATE 12/18/2009 USD $1,000,000 USD $2,000,000 USD$10,000,000 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 boiler and machinery, business interruption and extra expense; all real and personal property; replacement cost. Self - Insured Retention of USD $25,000,000 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. FOR ALL COVERAGES: 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; Topvalco, Inc.* Kroger Limited Partnership II; King Soopers, Inc. Fry's Food Stores of AZ Inc. Dillon Companies, Inc. Jackson Ice Cream Co., Inc.; Bell Markets, Inc.; Cala Foods, Inc ; Kwik Shop, Inc.; Mini Mart, Inc.; Food 4 Less Holdings, Inc.; Turkey Hill Minit Markets, Turkey Hill L.P. The Memorandum of Insurance serves solely to list insurance policies, limits and dates of coverage. Any modifications hereto are not authorized. • KRGP INC. ASSISTANT SECRETARY'S CERTIFICATE I, Dorothy D. Roberts, Assistant Secretary of KRGP Inc., a corporation organized and existing under and by virtue of the laws of the State of Ohio (the "Company") do hereby certify that the following are true and exact copies of certain resolutions adopted by the Board of Directors of the Company through an action by unanimous written consent dated as of July 12, 2004; and I further certify that these resolutions have not been amended, modified or rescinded and remain in full force and effect: RESOLVED, That any two of the following persons be, and they hereby are, authorized for and on behalf of the Company, as general partner of Kroger Limited Partnership I, Kroger Limited Partnership II, and Kroger Texas, L.P. (together, the "Partnerships"), to sell or transfer real property, and to execute and deliver deeds and any one of the following persons be, and hereby is, authorized for and on behalf of the Company, as general partner of the Partnerships, to execute and deliver any other documents necessary or incident thereto where the consideration for any such sale or transfer does not exceed the sum of Fifty Million Dollars ($50,000,000) in the aggregate in one transaction, to wit: the President, any Vice President, and any other officer thereunto duly authorized by the President; and that the Secretary or any Assistant Secretary may impress thereon the seal of the Company and attest the execution of such deeds or other documents, and be it further RESOLVED, That any one of the aforementioned persons be, and each hereby is, authorized for and on behalf of the Company, as general partner of the Partnerships, to contract for the purchase by the Company of real property, and to execute and deliver any documents necessary or incident to such purchase where the consideration for any one such purchase does not exceed the sum of Fifty Million Dollars ($5o,000,000); and that the Secretary or any Assistant Secretary may impress thereon the seal of the Company and attest the execution of such contracts or other documents, and be it further RESOLVED, That any one of the aforementioned persons be, and each hereby is, authorized for and on behalf of the Company, as general partner of the Partnerships, to acquire equipment, real property, leasehold interests in real property and other interests relating to the operations of the Partnerships and to execute and deliver documents necessary or appropriate in connection with such acquisition, where the aggregate consideration for any transaction or series of related transactions does not exceed Fifty Million Dollars ($50,000,000); and be if further RESOLVED, That any one of the aforementioned persons be, and each hereby is, authorized for and on behalf of the Company, as general partner of the Partnerships, to execute all documents related to the disposition of the interests of the Partnerships by leasing, subleasing or assigning of leases, for real property used or acquired by the Partnerships in connection with their operations where the aggregate consideration for any transaction or series of related transactions does not exceed Fifty Million Dollars ($50,000,000); and be it further RESOLVED, That any one of the aforementioned persons be, and each hereby is, authorized for and on behalf of the Company, as general partner of the Partnerships, to grant easements, right-of-way dedications and such other instruments necessary for the partitioning and/or development of the real property of the Company and/or the Partnerships and be it further RESOLVED, That any one of the aforementioned persons be, and each hereby is, authorized for and on behalf of the Company, to execute all documents necessary in such officer's judgment to enter into one or more partnerships or limited liability companies for the purpose of purchasing, owning, leasing, developing and selling real property, and be it further RESOLVED, That any one of the aforementioned persons be, and each hereby is, authorized to execute such documents as may be deemed necessary, desirable or appropriate, in such officer s judgment, in the business operation of any such partnership or limited liability company, on behalf of the Company as a partner or member, as the case may be, including, but not limited to, guaranty or loan participation agreements and loan documents for construction loans and permanent loans, provided that all loans for any one property do not exceed the sum of Fifty Million Dollars ($50,000,000) in the aggregate, and be it further RESOLVED, That any one of the aforementioned persons be, and each hereby is, authorized to guarantee in the name of and on behalf of the Company, any lease or other obligation incurred in the ordinary course of business by any wholly - owned subsidiary or any other corporation or business entity in which the Company holds at least a 20% ownership interest, whether through voting stock, or otherwise. 2009. IN WITNESS WHEREOF, I have hereunto set my hand on the 25th day of June, Dorothy D. R.!.e s Assistant Secretary