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HomeMy WebLinkAboutContract 45002 (2)�► \� (c3 S i ice. „;1'C %-iftagr- ZO0 )o V 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 Witcher Properties, Ltd, acting herein b and through its duly g authorized agent, Loftin Witcher hereinafter referred to as '.'Grantee", Owner of the property located at 3613 West Vickery ("Property"). WITNESSETH: 1. For and in consideration of the byGra'ntee of the fee set out payment 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)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: IjFfIcUI. RECORD CITY SECRETARY teortorlsit::eir\ RrCEIVED OCT 152013 • Private parking and drive aisle in Rutledge ROW 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 -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 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. 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 Agreerrient 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 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 automaticallyterminate. 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. 5 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 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 6 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, S UBCONTRACTORS, LICENSEES OR INVITEES OF THE CITY; AND GRANTEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR S UCH 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, S UBCONTRACTORS, 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 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. 8 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 TERMINATION OF THIS AGREEMENT. 20. This Agreement shall be binding upon the parties hereto, their successors and assigns. 9 EXECUTED this City City of Fort Worth By: Ran le Harwood Director Planning and Development ATTEST: 'City Secreffi Witcher Properties, Ltd. By: Witcher Properties Management Trust Its General Partner By: zu Name: LoftihWitoher Title:Trustee Approved As To Form And Legality Senior Assistant City Attorney • 10 STATE OF TEXAS COUNTY OF TARRAN T BEFORE ME, the undersigned authority, a NotaryPublic in and for the State of Texas, on this day personally appeared Randl e Harwood, known to the person whose name is subscribed to the foregoing instrument,acknowledged and to me that he/she executed the same for the purposes and consideration therein expressed, p essed, as the act and deed of the City of Fort Worth, and in the capacitytherein n stated. UNDER MY�D AND SEAL OF OFFICE thi My Commission Expires Apt!! 26, 2017 Notary Public in and for the State of Texas STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, authority, a Notary Public in and for the State of Texas, on this daypersonally p onally appeared Loftin Witcher, known to me to be the person whose name is subscribed to the foregoing instrument, � g and acknowledged to me that he/she executed the same for the ur 4SeS p p and consideration therein expressed, as th e act and deed of Witcher Properties. �erttes, Ltd.. and in the capacity therein stated. 1 UNDER MY HAND AND SEAL Q IF OFFICE this ea„,,, 20 1 At Air CASSANDRA F. FOREMAN Notary Public, State of Texas My Commission Expires April 261 2017 Notary Public in and for the State of Texas • • ..• ..-, a. • ;;.. • • f • • • • 12 2 a ali r--a Cr) 1 1 1 1 11 S; (Oh I -is 1 , — -C CC Pareams • tet ,.7.3zlit Itp, isallekowtosarses S 0013(421 itsni 0 it" riGs, =s— • • 4ate i I. va- r` sae / / , 1 '/ 7 r ,e — *`p 1 1' 1'!" I r- 1- Iic. A 11 L a .1` I' INS I.1' 5 a beEta aal g fi kJ CO ,.rwlyt ' re CI it A EXHIBIT is 1 1 1' 1 . 'a. iI r1 1 '� 1 1 1 11 1 sit '1 1 1 '+', t14 Ili I II S 1 1 , 1 I. 1 1 I its 1 oil! ,1 11 1' 1 1+ ,� I j 1.f r1 1 ' r 14 III' ,silo ' 1 III +/1,t s i1 ,I hIt II ea 1,It t j 1 1 III �1 I0 ,II * y III IIIlII llI ++', CI r1 1 ,1I tilt 1 i, r 1 1 is II so ,1 • , Ito ti ` y'v 1' $ I1 1', 1 1 111 11 11 1 1 vy. 0 'n .3111 LaJ de L a1 s,�_Its • 1 1 1 1 • JuJI , Ld 1ICI 15478 uTh L ACORT, 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 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 HUB Intl Insurance Services 777 Main St, Suite C-50 Fort Worth TX 76102 INSURED Witcher Properties, Ltd. 3985 W. Vickery Blvd. Fort Worth TX 76107 CONTACT NAME: PHONE LAM, No. Extl: E-MAIL ADDRESS: (817) 820-8100 DATE (MM/DD/YYYY) 7/30/2013 FAX (A/C,No): (817) 870-0310 INSURER(S) AFFORDING COVERAGE NAIC # INSURERA: Travelers INSURERS: INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: Cert ID 45889 Lloyds Insurance Co. 41262 REVISION NUMBER: 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 ADDL BUSH POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER (MM/DD/YYYY) (MMIDDIYYYYI LIMITS GENERAL. LIABILITY A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE X OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: —1 POLICY I I JECOT I I LOC AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS SCHEDULED AUTOS NON -OWNED AUTOS UMBRELLA LIAB EXCESS LIAB DED I I RE I ENTION WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORJPARTNERJEXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH} If yes, describe under DESCRIPTION OF OPERATIONS below OCCUR CLAIMS -MADE Y!N NIA 6603842E377 12/31/2012 12/31/2013 DESCRIPTION OF OPERATIONS / LOCATIONS 1 VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) CERTIFICATE HOLDER City of Fort Worth 1000 Throckmorton Street Fort Worth TX 76102 • CANCELLATION EACH OCCURRENCE UAMAUL I KEN IEll PREMISES (Ea occurrence) MED EXP (Any one person) PERSONAL & ADV INJURY GENERAL AGGREGATE PRODUCTS - COMP/OP AGG COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE (Per accident) EACH OCCURRENCE AGGREGATE $ $ $ IWC STATU- TORYLIMITS I IOER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ E.L. DISEASE - POLICY LIMIT I $ EXHIBIT B $ 1,000,000 500,000 10,000 1,000,000 2,000,000 2,000,000 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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