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Home My WebLink AboutContract 44448; : ,, . � ; � ;�.. � r ;;.; � i ; j�� RIGHT OF WAY �NCROACHMENT AGREEM�NT (COAfA/ERCIAL) THIS AGREEMENT is made and entered into by and between the City of Fort Woi�th, a municipal corporation of Tai7ant 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 Cotarlla, L.P., a Texas Liinited Partnership acting herein by and through its duly authorized General Partner, hereinafter referred to as "Licensee", Owner of the property located at 532 Commerce Street ("Property"). AGREEMENT 1. For and in consideration of the payment by Licensee of the fee set out below and the ti•ue and faithful perfortnance of the mutual covenants herein contained, City hereby grants to Licensee permission to construct/ install and/or allow to remain, Improvement(s) ("Iinproveinent") that encroaches upon, uses and/or occupies por•tions 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: Placement of a canopy ovet• an ATM crt the BB&T bank location The location and description of said Improvement and the encroachment is more particularly described in Exhibit "A", attached hereto, incoiporated 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 Directoi• of Transpoi•tation and Public Worlcs of City, or his duly authorized representative. All plans and specifications thereof shall be subject to the AF��:�� i��;�� ITY ��+��'�� -r �i y��la ��nc Agreement -Commercial , R� C� � W��Y 1�j �� I� Page 1 of 10 prior written approval of the Director of Transportation and Public Worlcs, 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, sidewallcs and other public rights-of-way involved, except as described herein and shown on the hereinabove z•eferred to Exhibit "A". 4. Licensee, at no expense to the City, shall malce 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 fi•om 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 puipose of installing or maintaining improvements necessary for the health, safety and welfare of the 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 disiuption of improvements installed by Licensee or its successors, but City will make reasonable efforts to minimize such damage. 2012 ROW Encroachment Agreement -Commerciai Page 2 of 10 H 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 Two Hundred and Seventy Five Dollars ($275.00). 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. : 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 Worics, or his duly authorized r•epresentative, 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. 9. It is further undeistood and agreed upon between the parties hereto that the public rights-of-way, alleys, sidewalks ("public z•ight-of-way") to be used and encroached upon as described herein, are held by City as tr•ustee for the public; that City exercises such 2012 ROW Encroachment Agreement -Commercial Page 3 of 10 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 paz•ty may have an interest. Licensee agrees that it will obtain all necessary permission before occupying such property. 11. Licensee agi•ees 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. 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 2012 ROW Encroachment Agreement -Commercial Page 4 of 10 0 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 LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUSCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. 15. 2012 ROW Encroachment Agreement -Commercial Page 5 of 10 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 rislcs 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 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 lceep 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. 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 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. 2012 ROW Encroachment Agreement -Commercial Page 6 of 10 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 pai-ties hereto, their successois and assigns. 2012 ROW Encroachment Agreement -Commercial Page 7 of 10 � EXECUTED this �� day o� �� 1� 20 �� City City of Forl Worth By: Rai Dir� Planning and Developmeni ATTEST: Grantee (Business Name) Cotulla, L.P., a Texas limited partnership By Camerina, L.L.C., it's general partner By: '' / �. Name�,�d Title: Genera f,t/ Partner Approved As To Form And Legality � �� f: , �`�: ,� Assistant City Attorney � � ' .!, ' .:. � '�: � '�• ' ' „�: 8 of 10 � '' .:� *.;i ►; , � STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notai•y Public in and foi• the State of Texas, on this day personally appeared Randle Harwood, lcnown to me to be the person whose name is subscribed to the foregoing insh�ument, and acicnowledged 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 � S ay of , 20�. Notary Public in and for e 2. G. NARE2 "�: �lotary Public, State ot Texas ` My Commission Expires , September 10, 2013 2012 ROW Encroachment Agreement -Commercial Page 9 of 10 STATE OF TEXAS COUNTY OF TARRANT 0 �� BEFORE ME, the undersigned auihority, a Noiary Public in and for the State of Texas, on this day personally appeared �3,�cz;n, ��a�� Y'l , known to me io be ihe person whose name is subscribed to the �oregoing insirumeni, and acknowledged to me thai he/she execuied the same ior the purposes and consideration therein expressed, as ihe ac1 and deed of Camerina, L.L.C.� General Partner �f Cnt>>l la, r.a_ , and in the capacity therein siated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this rn!� iC-�� 2 � 1�� JANEBOYD Notary Public, State of Texas My Commission Expires May 09, 2016 ��n day oi / y� otary,Publ c in and for the Staie of Texas 10 of 10 I �- �---�� - I O�� I � I �� II � I I �P. � O g F 0 � i� � �� gu� � -i Pk P�2 �� } �r1 � . � � � � � � ( � 'r n� brkk xalt � � � — �� — . .. — � _. ___.tz �.L �-��--�'.1�.�'-.�'�- _ �__._r- 60' R.O.W. — COPA��ENT (41' B�TO W/� SPHA�T 57REET ( g _ - -��---- - �� V�� .�c � �,...:i.: ,s . ,•� *•fGl{, I �i?:5'.iiit��iS_:S .� �-_`s : ::; _ tr._t� S.'J �'P� � � � 2O ro c 9�0 � 60' R.O.W. — COPA��ENT (41' 8�7 w�) SPHALT STREET `\' \ t . � \, �'\ � � . ` \ \ '1 , �' 1 , t, i � � �` �� .` : � i \ .� ��\ �1 , ,,`\ � . � �\ .. �\�, ; � `': ` �'l �'. � � \ �1 ' " � � \ 1 �.. . \\ \�. \ \ \ \ . �\� - I \` \ •, \ � \ \ \ `�� ,` . \ �\ �;� , . \ .� � � �` . ` � � �. ', ,� � \ ,\ , \ !,A �,� � ' �. \ ''`,� �\\�, \ `� �� \ � ''�\ � , ,� ��< � � 1\ ,, , , , ! 1�, . `�� \ � �� _� � �� iI 'I �i.,+� , \ .,, _.� \ �.. \ �a _a , �, l ___ _— —, -- ---`— � ,�--_--- - � — � �' � � � � � �ri ` ... .: _ ,-.: '� E�t.' z. � : � ". .. . � �� J . � � ,�� ,t� � r , � i.,�.,� ,.i� � � �. `' `�". `� ,''��` , : , ,. , �� .. 1 ■� `;' ; . . � '� _ �,' � - ---- ---- - -� � � � I ,. � ', _w:a 'j. ,� \ � \ \ A \ � � �F 1�1 s� �. �� \ �' � �� ` ` DATE (MMIDD/YYYY) �`'� �� CERTIFICATE OF LIABILITY INSURANCE 5/14/2013 THIS CERTIFIGATE 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 HO�DER. 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 NTACT NAME: BB&T Insurance Services, Inc. a"N EX • 28-277-3 17 nrc No : - 32-42 Risk Management Department E-MAIL PO Box 5318 ADDRESS:IISWI IC bbandt.co Asheville NC 28813 INSURERIS) AFFORDING COVERAGE NAIC # INSURED 01 BBTMAIN BB&T Corporation and Subsidiaries c/o BB&T Insurance Services Inc. PO Box 5318 Asheville NC 28813 COVERAGES CERTIFICATE NUMBER:4 INSURER A : INSURER B : INSURER C : INSURER D : REVISION NUMBER: -, 2ED NAMED ABOVE FOR THE POLICY PERIOD ; DOCUMENT WITH RESPECT TO WHICH THIS ED HEREIN IS SUBJECT TO ALL THE TERMS;"` S. � - � LIMITS � EACH OCCURRENCE $1000000 THIS IS TO GERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO TH INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES Dl EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY Pf1iC R TYPE OF INSURANCE ADDL SUBR POLICY EFF PO R -�- WSR WVD � POLICY NUMBER MM/DD/YYYY MM GENERAL LIABILITY 2UENMS9258 /1/2013 /1/2 COMMERCIAI GENER4L LIABILITY � CLAIMS-MADE � OCCUR AGGREGATE LIMIT APPLIES PER: AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS SCHEDULED AUTOS NON-OWNED AUTOS UMBREILA LIAB EXCESS LIAB •Ci� •� � u u�lo WORKERS COMPENSATION AND EMPLOYERS' LIABILITY y� N ANY PROPRIETOR/PARTNER/EXECUTIVE OFPICER/MEMBER EXCLUDEDI ❑ N � A (Mandatory in NH) If yes, describe under � 22UENMS9259 ZUP10P9038313NF . _. . . ..... _... � DAMAGETO RENTED PREMISES Ea ocwrrence 3300000 � � � � MED EXP (Any one person) $10000 � � � � � �� -� � ��" "��""� � PERSONAL & ADV INJURY $1000000��-� `�� ""�"' ��"��' � � � GENEft4LAGGREGATE � $2000000� �� - �;�, ,. ,,., PRODUCTS - COMP/OP AGG $2000000 � t J � ..:i�,��i.{.':�i�� . ... . ._ $ . .__ __. I _ /2013 INJURY(Perperson) $ -� INJURY(Peraccidenq $ 2TY DAMAGE $ dent $ EACH OCCURRENCE AGGREGATE - ' � WC STATU- OTH L I ER � ' E.L. EACH ACCIDENT � � E.L. DISEASE - EA EMPLOYEI � �-� �� ` E.L. DISEASE -POLICY LIMIT I DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 107, Additional Remarks Schedule, if more space is requirer" _ocation: 532 Commerce Street, Fort Worth TX 76102 (ATM location) e City of Fort Worth is listed as additional insured with respect to the location listed above. ''' EXHIBIT B ; i t'.. CANCELLATION City of Fort Worth 920 Fournier Street Fort Worth TX 76102 ACORD 25 (2010/05) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WIL� BE DELIVERED IN . ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE � � � � '� � � - "�� `��.. �. �'�� OO 1988-2010 ACORD-CORPORATION. All rights reserved.� The ACORD name and logo are registered marks of ACORD `