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HomeMy WebLinkAboutContract 38747CITY SECRETARYi�!SL c;ONTRACT NCB 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 P r✓ s M.�.vt �. acting herein by and through its duly authorized �r'iG f;2�GIGly«,cP hereinafter referred to as "Grantee", Owner of the property located at 3u So,rH, EitndGrsen ("Property"). WITNESSETH: IF i! 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, all OFFICIAL REC®RD CI'1Y�ECRETARY FT. WORTH, Tx 1 sidewalks and other public rights -of -way, such Improvements) are described as follows: �r Wo Sty4c�e'i 11C k & ovt Heincleysnn a.hcl 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 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. 2 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 -%a 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 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 N�Z Dollars ($ ). V,/aiv�l 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. 4 �a 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 constructionI 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. iCm 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 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 Gity'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. 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. 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 thisa4� ay of j 20N. City City of Fort Worth Planning and Development ATTEST: City Se retary Grantee (Business Name) By: Name: PES Mo►N�►�� LAC Dr. Er«. Pac.Y.�.�ood Title: PAAW AP - Approved As To Form And Legality Assistant City Attorney 10 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 lv �2 ' aE) , 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 Pes stated. and consideration therein expressed, as the act and deed of and in the capacity therein GIVEN UNDER MY HAND AND SEAL OF OFFICE this , 202. GENEVIA RUTH CROW Notary Public, State of Texas My Commission Expires April 07, 2012 State of Texas � S�day of 12 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 Notary Public in and for t e State of Texas R. G. NAREZ Notary Public, State of Texas My Commission Expires September 10, 2009 11 � EXIST'G TRAFFIC SIGNAL POLE EXIST'G TRAFFIC SIGNAL POLE 3'-4 3/8" I STREET LIGH 9 -0 Type EXIST'G p POWER POLE A . 04 � CONT 3. I PAVERS MASONR = I STREET LIGHT, TYP. w w I EXIST'G cl POWER 4�A O O n POLE NORTH -6" (PROTECT) SET i o' CHAIN uNK FENCE CONNECTS EXHIBIT; PEDIATRIC EYE SPECIALISTS 1/16" STREET LIGHTING; WEST ELEVATION; (SOUTH HENDERSON STREET) N .w U dNl� �.d�dodd I I i I I I I I I I I I I I I I I I I I I I I ACORD CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) TM 1 4/13/2009 PRODUCER Phone: 800-728-2374 Fax: 817-882-9284 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Higginbotham & Associates Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 500 W. 13th Street HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, Fort Worth TX 76102 INSURED Innovative Developers Inc. 930 West 1st Street, Suite 201 Fort Worth TX 76102 COVERAGES INSURERS AFFORDING COVERAGE INSURERA:Admiral Insurance ( INSURERB: Texas Mutual Insur2 INSURERC:James River InSurai INsuRERD:Great American Ins1 INSURER E: NAIC # 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. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADDIPOLICY S POLICY NUMBER EFFECTIVE DATE MM D POLICY EXPIRATION DATE MM DD LIMITS A GENERAL LIABILITY CA00000946003 7/2/2008 7/2/2009 EACH OCCURRENCE $ 1 000 000 X COMMERCIAL GENERAL LIABILITY DAMAGES( RENTED TO PREMISES Ea occurence) $ 5 0 0 0 0 CLAIMS MADE � OCCUR MED EXP (Any one person) $ 5 000 PERSONAL $ADVINJURY $ ]- 000 000 GENERAL AGGREGATE $ 2 0 0 0 0 0 0 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OPAGG $ 2 000 000 POLICY PE 0 LOC AUTOMOBILE LIABILITY ANY AUTO COMBINED SINGLE LIMIT (Ea accident) $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per person) $ HIRED AUTOS NON -OWNED AUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY -EA ACCIDENT $ ANYAUTO OTHERTHAN EAACC $ AUTO ONLY: AGG $ C EXCESS/UMBRELLA LIABILITY 00017370 7/2/2008 7/2/2009 EACH OCCURRENCE $ rj 000 000 X OCCUR El CLAIMS MADE AGGREGATE $ 5 0 0 0 0 0 0 $ DEDUCTIBLE $ RETENTION $ $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE TSF0001104697 4/12/2009 4/12/2010 X TATU- OCSLIIMT OEH E.L. EACH ACCIDENT $ ]_ 0 0 0 0 0 0 OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below E.L. DISEASE- EA EMPLOYEE $ 1 0 0 0 0 0 0 E.L. DISEASE- POLICY LIMIT $ 1 0 0 0 0 0 0 D OTHER Builders Risk IMP6146794 5/9/2008 7/2/2009 Any One Location $5, 000, 000 Per Disaster $5,000,000 $100,000 rransDeductible-$5,000 Temporary a mporary Location $100,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS Job: Pediatric Eye Specialists City of Fort Worth is included as an additional insured with a waiver of subrogation issued in their favor as respects he General Liability policy where required by written contract but only in accordance with policy terms, conditions and exclusions and only with respect to liability arising out of operations of the named insured. CERTIFICATE HOLDER City of Fort 311 West loth Fort Worth TX SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WOrth WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE Street CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO 76102-0000 SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED ACORD 25 (2001/08) � ®ACORii'CORPORATION 1988 CONSENT TO ACTION TAKEN WITHOUT ORGANIZATIONAL MEETING OF THE 1�lANAGERS OF PES IviANAGEMENT, LLC In accordance with the authority contained in Section 6.201 of the Teas Limited Liabiliri Company Law, the undersigned, being all of the Managers of PES IvtANAGEMENT, LLC, do hereby consent to the following actions of such company without the formality of convening an Organizational Meeting. WHEREAS, the Certificate of Formation for the company was filed on May 16, 2008, in the office of the Secretary of State of the State of Texas. NOW THEREFORE, IT IS: RESOLVED, that the Secrctar}of the company, upon election, be instnreted to cause a copy of such Certificate of Formation to be inserted in the company minute book. RESOLVED FURTHER, that the form of the Compan}� Agreement attached hereto, be adopted as the Company Agreement of the company, and that such Company Agreement be submitted to the Members for their consent and signature. Upon the consent and signature of the Members, that the Secrctaryy of the company, upon election, be instructed to cause a copy of such Company Agreement to be inserted into the company minute book. RESOLVED FURTHER, that the following persons be, and are hereby elected to serve as the designated officers of the company until their successors are elected and qualified: President Eric Packwood, M.D. Vice President Alan Norman, M.D. and Michael Hunt, M.D. Secretary Alan Norman, M.D. Treasurer Michael Hunt, M.D. RESOLVED FURTHER, that the company is hereby authorized to establish appropriate banking relations for the company with one or more banks as Eric Packwood, M.D., as President, or Alan Norman, M.D., as Vice President, may select in his discretion, with such signature authorizations as Eric Packwood, M.D., as President, or Alan Norman, M.D., as Vice President, may approve from time to time in his discretion, and Eric Packwood, M.D., as President, or Alan Norman, M.D., as Vice President, on behalf of the company, is authorized to certify and file with each respective bank their customary forms or resolutions pertaining to bank accounts, signature authorizations and borrowing, a copy of each such resolution or form to be inserted in the minute book of the company, -i- and such resolutions or forms will be deemed to Dave been adopted by the Managers as though fully set forth in these minutes. RESOLVED FURTHER, that the Managers issue all of the Membership Interests of the company to the following Member effective May 16. 2008, as follows: Name of Percentage of Capital Member Membership Contribution Interest Eric Packwood, M.D. 33 1/3% See Exhibit "A" of Company Agreement Alan Norniali, M.D. 33 1/3% See Exhibit "A" of Company Agreement Michael Hunt, M.D. 33 1/3% See Exhibit "A" of Company Agreement The above resolutions setting forth actions taken, duly signed by all of the Muiagers, will have the same force and effect as a unanimous vote at a meeting of the Managers. Effective the 16'" day of Xiiay, 2008. zo�i �o�i -2-