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HomeMy WebLinkAboutContract 45765 (2)COW Wc « @511; RIGHT OF WAY ENCROACHMENT AGREEMENT (COMMERCIAL) 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 City Manager or its duly authorized Assistant City Manager or Planning and Development Department Director, hereinafter referred to as the "City", and Rang One Holdings, LLC , acting herein by and through its duly authorized Rick Nunnally, Member, CFO hereinafter referred to as "Licensee", Owner of the property located at 554 Lipscomb St, Fort Worth, TX 76104 ("Property"). AGREEMENT 1. For and in consideration of the payment by Licensee of the fee set out below and the true and faithful performance of the mutual covenants herein contained, City hereby grants to Licensee 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, sidewalks and other public rights -of - way, such Improvements) are described as follows: Fence and trellis encroachment over property line Bike rack in R.O.W. Brick Pavers in R.O. W. Masonry wall encroachment over property line 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. 2012 ROW Encroachment Agreement -Commercial RECEIVED JUL 2 2OiR' I' P P, RE©ORD C ' ' SECRETARY' [Fir. WORTH, TX Page 1 of 10 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 Licensee 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 heremabove referred to Exhibit "A". 4. Licensee, 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, Licensee 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 2012 ROW Encroachment Agreement -Commercial Page 2 of 10 public or for any other public purpose. In this regard, Licensee understands and agrees that City shall bear no responsibility or liability for damage or disruption of improvements installed by Licensee 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, Licensee agrees to pay to City at the time this Agreement is requested an application fee in the sum of Three Hundred and Twenty Five Dollars ($325.00). Upon execution of this Agreement and annually thereafter, Licensee agrees to pay a fee in the amount of $.56 per square/linear foot of the encroachment area. 7. The term of this Agreement shall be for thirty (30) years, commencing on the date this Agreement is executed by the City of Fort Worth. Provided however, this Agreement shall terminate upon the non-compliance of any of the terms of this Agreement by the Licensee. City shall notify Licensee of the non-compliance and if not cured within thirty days this Agreement shall be deemed terminated. 8. Upon termination of this Agreement, Licensee 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 Licensee that if this Agreement terminates and Licensee 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 2012 ROW Encroaclunent Agreement -Commercial Page 3 of 10 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. Licensee agrees and acknowledges that this Agreement is solely for the purpose of permitting Licensee to construct, maintain and locate the Improvements over or within the described public right of way and is not a conveyance of any right, title or interest in or to the public right of way nor is it meant to convey any right to use or occupy property in which a third party may have an interest. Licensee agrees that it will obtain all necessary permission before occupying such property. 11. 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 Improvement, encroachment and uses. 12. 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. 2012 ROW Encroachment Agreement -Commercial Page 4 of 10 13. 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. 14. LICENSEE 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 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 ANY AND ALL ACTS OR OMISSIONS OF 2012 ROW Encroachment Agreement -Commercial Page 5 of 10 LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. 15. 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 Licensee 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 Ftxhibit "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 teen 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. 16. 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 Consent 2012 ROW Encroachment Agreement -Commercial Page 6 of 10 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 Licensee, City shall be entitled to recover interest and reasonable attorney's fees. 18. Licensee 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. EXECUTED this day of aii) ,20tf 2012 ROW Encroachment Agreement -Commercial Page 7 of 10 City City of Fort Worth • By: Randl: Harwood Director Planning and Development ATTEST: Licensee Rang One Holdings, LLC By: Name :Rick Nunnally TitleMember, CFO Approved As To Form and Legality City Secretary Assistant City Attorney OFFICIAL RECORD CITY SECRETARY 1� L[ o TORTH, TX • 2012 ROW Encroachment Agreement -Commercial Page 8 of 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 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. carumN UNDER/ AND AND SEAL OF OFFICE this ,1 day of CASSA NDRA F. FOREMAN public. State of Texas NotaryCommission Expires y April 26, 2017 moo Notary Public in and for the State of Texas 2012 ROW Encroachment Agreement -Commercial Page 9 of 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 Rick Nunnally, Member, CFO, 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 Rang One Holdings, LLC, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this >20�� • KATHY JOHNSTON Notary Public, Statti of Texas My Conrimistion Expires mugusi Uzi 2016 /t4: day of Notary Public and 'or the State of Texas 2012 ROW Encroachment Agreement -Commercial Page 10 of 10 =NM WOMB LOW MASONRY WALL — MASONRY WALL BR CK PAVERS Cid STEEL FENCING AND POSTS (POSTS SERVE AS COLUMNS FOR TRELLIS) BIKE RACKS (QTY. 3) IN LINE WITH TRELLIS POSTS. BIKE RACKS TO BE 2x2 TUBE STEEL, WITH RAW FINISH TO MATCH TRELLIS. PROJECT: 554 LIPSCOMB REFERENCE: ENCROACHMENT EXHIBIT rev. U6/1//14 rmv ()F/1A/14 DATE: 04/08/14 SCALE: 8" = r BRICK PAVERS - ADJUST WM BOX GRADE TO MATCH GRADE OF PAVERS alien architecture ENCROACHMENT AGREEMENT REO'D FOR TREWS WORK 3" STL. PIPES PREFINISHED MTL TRIM @12"OC HVAC C/U IPROVIDE REC. FALL I PROTECTION GUARD FOR HVAC MAINT. PREFINISHED MTL. PARAPET CAP 8'-0" SCUPPER W/ e n p n n n n n n 2'k8"STL TUBES EXIST. SIDEWALK RAW STEEL TREWS SYSTEM 4x16 CMU VENEER SMOOTH HARDI LAP SIDING - PNTD. - 4" EXPOSURE SMOOTH HARDI SIDING - 12" EXPOSURE NORTH ELEVATION 1 $Q4F,6LE 1 EXIST. STUCCO FINISH AND WINDOWS 0 PROJECT: 554 LIPSCOMB REFERENCE: ENCROACHMENT EXHIBIT DATE: 04 / 08 / 14 SCALE: 8" = 1-0" 12 CMU WALL WITH 2" CMU CAP TL GUARDRAIL AND MC10x8.4 FRAME REF. RAIL DETAIL ON A3 8" CMU WALL UNDER STL. FRAME alien architecture ACO OR 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 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 Hotchkiss Insurance Agency, LLC ,IA/C- No, EXt):972-512-7700 I FAc. No):972-512-7799 PHONE 4120 International Parkway E-MAIL Carrollton TX 75007 ADDREss:dailascerts an hlallc.com INSURER(S) AFFORDING COVERAGE NAIC # INSURER A :Vininas Insurance Company 6632 CHELD-1 INSURER B .HB-Texas Mutual Insurance 2945 INSURED Cheldan Homes, LP 6861 Corporation Pkwy Fort Worth TX 76126 CERTIFICATE OF LIABILITY INSURANCE COVERAGES CERTIFICATE NUMBER: 1775416191 GUN TACT NAME: INSURER c :Great American Insurance Co. INSURER D :Amtrust Insurance Co of Kansas INSURER E : INSURER F : REVISION NUMBER DATE (MMIDD/YYYY) 4/22/2014 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. INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP W/YLIMITS LTR INSR VD POLICY NUMBER (MM/DDYYY) (MM/DD/YYYYI A GENERAL LIABILITY D B C X COMMERCI4L GENERAL LIABILITY CLAIMS -MADE X OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: —I POLICY I I JECCT I I LOC AUTOMOBILE LIABILITY X X ANY AUTO ALL OWNED AUTOS HIRED AUTOS X SCHEDULED AUTOS NON-OVVNED AUTOS UMBRELLA LIAB EXCESS LIAB DED I I RETENTION $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below Builders Risk OCCUR CLAIMS -MADE YIN N/A PKG007067604 9/1/2013 9/1/2014 KPP1019175 TSF0001075767 IMP0535550 9/1/2013 3/1/2014 12/5/2013 12/5/2014 9/1/2013 3/1/2014 EACH OCCURRENCE I $1,000,000 DAMAGE TO RENTED PREMISES (Ea occurrence) MED EXP (Any one person) PERSONAL &ADV INJURY GENERAL AGGREGATE PRODUCTS - COMP/OP AGG $300,000 $10,000 $1,000,000 $2,000,000 $2,000,000 $ UUMI3INtL) SINGLt LIMI 1 (Ea accident) $11000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accidert) EACH OCCURRENCE AGGREGATE I TORY LIMITS I IOER E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE - EA EMPLOYE $1,000,000 E.L. DISEASE - POLICY LIMIT $1,000,000 Dwelling 2,000,000 Disaster 5,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space s required) NAMED INSURED SCHEDULE: Cheldan Homes LP; Optima Builders, Inc.; Cheldan Holdings; OMS Management LLC; Cheldan Homes San Antonio, LP; Cheldan Homes Management, LLC; Kaden Builders, LP dba Kaden Custom Homes; McVert, LP; MTH Burleson, LP; Sunview Two Group, LP; WSHTX, LP; Cheldan Enterprises,LP Cheldan Enterprise Management, LLC; Hampton Meadows, LP; P&G Development, LP; JFR-MH, LP: Rang One Holdings, LLC; and Cheldan HC, LLC The General Liability policy contains Waiver of Subrogation endorsement CG2404 05 09. See Attached... CERTIFICATE HOLDER CANCELLATION City of Fort Worth 1000 Throckmorton St. Fort Worth TX 76102 ACORD 25 (2010/05) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Lei au 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD EXHIHIT B ACOR120 AGENCY Hotchkiss Insurance Agency, LLC POLICY NUMBER CARRIER AGENCY CUSTOMER ID: CHELD-1 LOC #: ADDITIONAL REMARKS SCHEDULE NAIL CODE NAMED INSURED Cheldan Homes, LP 6861 Corporation Pkwy Fort Worth TX 76126 1 EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM FORM NUMBER: 25 FORM TITLE. CERTIFICATE OF LIABILITY INSURANCE The General Liability policy contains Designated Construction Project endorsement form CG2503 03-97. All homes built by the insured are subject to the limits of the policy. The general liability policy includes blanket addtional insured endorsement form [BIG GLECE (11/09)]. Page 1 of 1 ACORD 101 (2008/01) 0 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD CG 25 03 03 97 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED CONSTRUCTION PROJECT(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Designated Construction Projects: Construction projects during this policy period. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A. For all sums which the insured becomes legally ob- ligated to pay as damages caused by "occurrences" under COVERAGE A (SECTION I), and for all medi- cal expenses caused by accidents under COVERAGE C (SECTION I), which can be attributed only to ongoing operations at a single designated construc- tion project shown in the Schedule above: 1. A separate Designated Construction Project Gen- eral Aggregate Limit applies to each designated construction project, and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Construction Project General Ag gregate Limit is the most we will pay for the sum of all damages under COVERAGE A, except dam- ages because of "bodily injury" or "property damage" included in the operations hazard" and for medical expenses under COVERAGE C re- gardless of the number of: a. Insureds' b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing 'suits". 3. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Designated Construc- tion Project General Aggregate Limit for that designated construction project. Such payments shall not reduce the General Aggregate Limit shown in the Declarations nor shall they reduce any other Designated Construction Project Gen- eral Aggregate Limit for any other designated construction project shown in the Schedule above. 4. The limits shown in the Declarations for Each Occurrence, Fire Damage and Medical Expense continue to apply. However, instead of being B. C. D. E. subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Construction Project General Aggregate Limit. For all sums which the insured becomes legally ob- ligated to pay as damages caused by "occurrences" under COVERAGE A (SECTION I), and for all medi- cal expenses caused by accidents under COV- ERAGE C (SECTION 1), which cannot be attributed only to ongoing operations at a single designated construction project shown in the Schedule above: 1. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products -Completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Designated Construction Project General Aggregate Limit. When coverage for liability arising out of the "products -completed operations hazard" is provided, any payments for damages because of "bodily injury" or "property damage" included in the "pro- ducts -completed operations hazard' will reduce the Products -Completed Operations Aggregate Limit and not reduce the General Aggregate Limit nor the Des- ignated Construction Project General Aggregate Lim-, it If the applicable designated construction project has been abandoned delayed, or abandoned and then re- started, or if the authorized contracting parties dev rate from plans, blueprints, designs, specifications or timetables, the project will still be deemed to be the same construction project The provisions of Limits Of Insurance (SECTION III) not otherwise modified by this endorsement shall continue to apply as stipulated. CG 25 03 03 97 Copyright, Insurance Services Office, Inc., 1996