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HomeMy WebLinkAboutContract 41650 (2)CITY SECRETARY CONTRACT NO. Lth%OO, EASEMENT ENCROACHMENT LICENSE AGREEMENT THIS AGREEMENT is made and entered into by and between THE CITY OF FORT WORTH, a home rule municipal corporation of Tarrant County, Texas ("City"), acting by and through its duly authorized City Manager or duly designated Assistant City Manager ("City"), and The Dannon Company, Inc., a Delaware Corporation, hereinafter referred to as "Licensee", owner of the property located at 1300 West Peter Smith Street, Fort Worth, TX ("Property"). RECITALS WHEREAS, Licensee is the owner of certain real property described as Lot 2R- 1 R, Block 24 Jennings South Addition, an addition to the City of Fort Worth, Tarrant County, Texas as recorded in County Clerks Document No. D209116171 of the Plat records of Tarrant County ("Property"); and WHEREAS, the City has a 24 foot wide Drainage easement (the "Easement") in the property as shown on the map attached to this Agreement as Exhibit "A" and incorporated herein; and WHEREAS, Licensee desires to construct/place and maintain a building which will be used in connection with its manufacturing operations ( the "Encroachment") and which will encroach onto the City's Easement as shown on the attached survey and only to the extent shown thereon; and WHEREAS, to accommodate the needs of the Licensee, the City will allow the Encroachment under the terms and conditions as set forth in this Agreement. NOW, THEREFORE, the City and Licensee agree as follows: AGREEMENT 1. The City, in consideration of the payment by the Licensee of the fee set out below and covenants and agreements hereinafter contained, to be kept and performed by the Licensee, hereby grants permission to the Licensee to encroach upon and occupy a portion of the City's Easement as described in and at the location shown Exhibit A. Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining any -and-ail structures and buildings within and above the drainage easement. Licensee OFFICIAL RECORD CITY SECRETARY 1 tWORTH, TX shall not expand or otherwise cause the Encroachment to further infringe in or on the City's Easement beyond what is specifically described in the exhibit(s) attached hereto. 2. All construction, maintenance and operation in connection with such Encroachment, use and occupancy shall comply and be performed in strict compliance with the Charter, Ordinance and Codes of the City and in accordance with the directions of the Director of the Transportation and Public Works Department of City, or his duly authorized representative. Prior to the construction of the Encroachment, Licensee shall submit all plans and specifications to the Director or his duly authorized representative. Licensee shall not commence construction of the Encroachment until such approval shall be indicated in writing by the Director. However, such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Licensee agrees that City may enter and utilize the referenced areas at any time for the purpose of installing, repairing, replacing or maintaining improvements to its public facilities or utilities necessary for the health safety and welfare of the public for any other public purpose. City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Encroachment installed by Licensee, but City will make reasonable efforts to minimize such damage. 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 the Encroachment and use, Licensee shall pay to City an additional amount equal to such additional cost as reasonably deteiniined by the Director of Transportation and Public Works of the City, or his duly authorized representative. 2 4. 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 Encroachment and uses provided for by this Agreement, Licensee agrees to pay to City at the time this Agreement is executed a fee in the sum of $175.00. 5. The teiin of this Agreement shall be for thirty years, commencing on the date this Agreement is executed by the City of Fort Worth and automatically renewed for an additional ten (10) year teuus if all provisions of the preceding term have been fulfilled, payment of fee associated with a consent to encroach agreement that is in effect at that time and evidence that the City's insurance requirements are being met. 6. It is further understood and agreed upon between the parties hereto that the easements 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 easement 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 easement 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, that does not preclude the use of the Encroachment on the Property for a office building or activities related thereto, 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 the parties agree to negotiate in good faith in order to accommodate the Encroachment and the public purpose. 7. LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS 3 OFFICERS, AGENTS, SERVANTS, EMPLOYEES AND ELECTED OFFICIALS 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, ARISING OUT OF OR IN CONNECTION WITH, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF SAID ENCROACHMENTS AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, ELECTED OFFICIALS OR INVITEES OF THE CITY; AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. LICENSEE 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 THE ENCROACHMENTS AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES. 8. While this Agreement is in effect, Licensee 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 Licensee that such insurance amounts shall be revised upward at City's option and that Licensee 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 4 written notice to the Building Official of the City of Fort Worth. A copy of such Certificate of Insurance is attached as Exhibit "B". Licensee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement. Licensee 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 Licensees' contractors. 9. Licensee 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 Encroachment on Easement 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. 10. Licensee 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 Encroachment and uses. 11. Licensee 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. 5 12. Licensee 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 Licensee 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 Licensee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensee. 13. Licensee agrees and acknowledges that this Agreement is solely for the purpose of permitting Licensee to construct, maintain and locate the Encroachment over or within the described Easement and in not a conveyance of any right, title or interest in or to the Easement. 14. In any action brought by the City for the enforcement of the obligations of the Licensee, City shall be entitled to recover interest and reasonable attorney's fees. 15. The parties agree that the duties and obligation contained paragraphs 3 and 4 shall survive the termination of this Agreement. 16. Licensee covenants and agrees that it will not assign all or any of its rights, privileges or duties under this contract without the written approval of City, and any attempted assignment without such written approval should be void. 6 17. Any cause of action for breach of this Agreement shall be brought in Tarrant County, Texas. This Agreement shall be governed by the laws of the State of Texas. 18. This agreement shall be binding upon the parties hereto, their successors and assigns. EXECUTED this �i-k� day of City City of Fort Worth By: J Fernando Costa, Asst. City Manager ATTEST: City Secretary Licensee: The Dannon Company, Inc By: Name: Title: grL,2 T Pc 7)//fe Approved As To Form and Legality fll.ttt1 Assistant City Attorney co�6�a p� o NO 11481C REQUIRE 0 000rA Q 014 0 Zfri 0 goda oa d t P 9c OFFICIAL RECORD CITY SECRETARY Fit WORTH, TX 7 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 Fernando Costa 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 ,�L�'� day of 20 • Notary Public in and for the State of Texas a. P"ahasaart, MY MMISSION EXPIRES r 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 ?tjer p- the person whose name is subscribed to the foregoing instrument, and' known to me to be acknowledged to me that he/she executed the same for the purposes and consideration the the act and deed of the Grantee, and in the capacity therein stated, therein expressed, as GIVEN UNDER MY HAND AND SEAL OF OFFICE this c,71411/4 of � C�v�.t� ,20 � day PERLA YADIRA RIVERA Notary Public, State of Texas My Commission Expires August 01, 2012 Nota Y`u�ilic i nd for the State of Texas -I 70I cn • 2 8" SS CROSSES EXISTING -\ 36" STORM DRAIN FL 8"=623.0 EX. 36" SD — (BEND) EXISTING BUILDINGS o /m LAKE STREET 6=° so Q GRAPHIC SCALE 100 SANITARY SEWER CLEAN —OUT TOP=628.50 FL 8"=622.96 PROPOSED BUILDING 8" STAINLESS STEEL SANITARY SEWER LINE SS EXISTING 36" STORM DRAIN EXISTING 8" SS CROSSES _ EXISTING 36" STORM DRAIN EXISTING 8" SS CROSSES EXISTING 36" STORM DRAIN M M BRADNER AVENUE EXISTING BUILDING M J.) DASHED LINE REPRESENTS 36" STORM DRAIN ENCROACHMENT AREA ti EXISTING 36" STORM DRAIN ENCROACHMENT EXHIBIT MARCH 2011 Baird, Hampton & Brown, Inc. _ 0 Engineering & Surveying 6700 FRIDaa Pkm, Ste. 700 R. WOM, 70 76118 u6(017178-1277 F.o(e17)338-0o45 E-AlaRmallObhbine.com FIRM REGISTRATION # F-00044 i•kor,I CF:R Pon Risk Services Stamford CT Office 1600 Summer Street Stamford CT 06EJ07-4907 PHONE. (866) 28 -7122 7(A/ *Tfrg C . r;R'111-fICAr e , OF Ti „RAMER 1. j INSURANCE Northeast, USA • It\'SED The Daimon Company , Inc . 100 Hi 1 1 side Avenue 3 r d F 1 o o r whi to P 1 ai ns NY 10603 USA Inc. FAX - (847) 953- 5 390 e �• - DAfE(MM/DD/YYyy) 06/?8/2010 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURER A: INSURER B. INSURER C: INSURER. D• INSURER E: Zurich American Ins Co NAIC/1 16535 COVERAGES •__IMM• OD _ THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN JSSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD IND)CAThb. ANDING 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 HERETN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LIMITS SHOWN ARE AS REQUESTED INSR LR A ADD'L INSRU TYPE OF INSURANCE POLICY NUMBER ;ENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE X OCCUR Per Loc Agg • S2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER x POLICY PRO- JECT AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AU-1'OS NON OWNED AUTOS GARAGE LIABILITY 4EX ESS / UMBRELLA LIABILITY ANY AUTO nOCCUR DEDUCTIBI..E RETENTION CLAIMS MADE WORKERS COMPENSATION AND EMPLOYERS' LIABILI`IY ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in Nil) I( ye?, describe under_SPECIAL PROVISIONS below LOC OT}1 ER Y/N Gt_0298411909 • • POLICY EFFECTIVE POLICY EXPIRATION DATE(MM/DD/YYYY'; DATE(MM/DD[YYYY) 01/01/2010 01/01/2011 EACH OCCURRENCE LI M I TS DAMAGE TO RENTED PREMISES (Ea occurrence) I MED EXP (Any one person) 1 PERSONAL & ADV INJURY 1 GENERAL AGGREGATE DESCRIPTION OF OPERAT10NS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY.EN'DORSEMENT/SPECIAL PROVISIONS Evidence of Insurance. CERTIFICATE HOLDER City of Fort worth Attn: Fernando Costa 1000 Throckmorton St. Fort worth TX 7610? USA ACORD 25 (2009/00 • CANCELLATION PRODUCTS - COMP/OP AGG COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY ( Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE (Per accident) AUTO ONLY . EA ACCIDENT OTHER THAN AUTO ONLY : EACH OCCURRENCE AGGREGATE 1 • EA ACC AGG ITORY LIMITS I OTH I ER I E L. EACH ACCIDENT E.L. D1SEASE-EA EMPLOYEE E.L. DISEASE -POLICY LIMIT S2,000,0001 12,000,000 S10,000 S2,000,000 S2,000,000 c2,000,000 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 REPRESENTATIVES :— -- -- c r- J ©1988-2009 ACORD CORPORATION. Al( rights reserved The ACORD name and logo are registered marks of ACORD AUTHORIZED REPRESENTATIVE I .older Identifier : 570039344821 Certificate No