HomeMy WebLinkAboutContract 42448 CITY SECRETARY
CONTRACT No. y=1 444g
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 XTO Energy Inc.,
acting herein by and through its duly authorized _Joy Webster
hereinafter referred to as "Grantee", Owner of the property located at _801
Grove Street ("Property").
WITNESSETH:
1.
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, alleys,
OFFICIAL RECORD
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sidewalks and other public rights-of-way, such Improvement(s) are described as
follows:
From an existing XTO manhole located at the south east corner of 7th and
Calhoun Street, install 3-1.25" HDPE duct across city ROW along the south side
of 7th Street to proposed 3' x 5' x 4' XTO manhole to be located near the south
east corner of Grove and 7th Street. The ducts will be populated with fiber and
copper cable that provide voice and data services for XTO Energy Inc. use only.
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.
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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
damage or disruption of improvements installed by Grantee or its successors, but
City will make reasonable efforts to minimize such damage.
0.
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 Five hundred seventy five— Dollars ($575.00).
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 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.
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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.
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.
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� 1.
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
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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 MIND 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
GRANTEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR
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
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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.
10.
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.
EXECUTED this _1 yiL�ay of 0C-t e 'be r 2011 .
City Grantee: XTO Energy Inc.
City of Fort Worth
LJ,1411 246-A%+,
By: By: A% eAj
Rand Harwo d Name:_ oy V&bster
Director Title: Vice President-Facilities-
Planning and Development
ATTEST: Approved As To Form And Legality
JAI
City Secret Assista t City Attorney
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CITY SECRETARY
PT,WORTH,TX
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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 Fork Worth,
and in the capacity therein stated.
�`
V N UNDER MY HAND AND SEAL OF OFFIC E this day of
, 20 1
y,,• Y le►•,, IR1ViA 5AEN2 filc4c
f TexaS
NotarY Pubs}�,State° }res Notary Public in and for the
My cr mrniss+vn p
3onuax�r 28, 2012
State of Texas
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OVVIC;IAL SE R" 0R')
Reir��'y
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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 Joy Webster
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
XTO Energy Inc. and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this da y of
2Ld�A 2011
co
a in and for the
State o exas
NOWY* STATE OF TEXAS
� of timnrr.j*,4�i1�Q1 �Z
OfFiC
lAL RECORD
Cll'Y
SECRETARY
FT,VVORTIJ,TX
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Exhibit B
Certificate of Insurance
CERTIFICATE OF INSURANCE
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 polices listed below
NAME AND ADDRESS OF INSURED ! COMPANY AFFORDING COVERAGE
Barnett Gatnering. LP Ancon Insurance Company, Inc.
Fayetteville Gathering Company P,0- Box 530
HHE Energy Company Burlington,VT 05402
Mountain Gathering, LLC
Nesson Gathering System,LLC
Ringwood Gathering Company
Summit Gas Gathering,LLC
Timberland Gathering&Processing Company, Inc.
Trend Gathering&Treating, LP
XH,LLC
XTO Energy Inc.
XTC Offshore Inc.
V1/TW Properties Inc.
810 Houston Street
Fort Worth,TX 76102
This i's to certify that the policies of insurance listed below have been issued to the insured named above and are in force at
this time. 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 terms,
exclusions and conditions of such policies. Loss,if any,will be adjusted and shall be payable in accordance therewith.
THE INSURER FURTHER CERTIFIES THAT IT SHALL BE LIABLE FOR THE PAYMENT OF AMOUNTS WITHIN ANY
RETENTION AND/OR DEDUCTIBLE APPLICABLE TO THE POLICY, WITH A RIGHT OF REIMBURSEMENT FROM THE
NAMED INSURED FOR ANY SUCH PAYMENT BY THE INSURER.
ISSUE DATE EFFECTIVE DATE EXPIRATION DATE
August 15, 2011 01/01/2011 12/31/2011
LIMITS of LIABILITY
EACH
TYPE OF INSURANCE POLICY NUMBER OCCURRENCE AGGREGATE
COMMERCIAL GENERAL LIABILITY 07/44812011 Bodily Injury $1,000,000 $2,040,000
Property Damage As required by As required by the
Comprehensive Form the agreement up agreement up to
Products/Completed Operations Hazard to the limits of this the limits of this
Personal and Advertising Injury policy. policy.
DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLESISPECIAL ITEMS:
Certificate Holder is named as an additional insured on the general liability coverage to the extent required by
Certificate Holder`s contractual indemnities.
Cancellation: Should any of the above described policies be cancelled or coverage reduced before the expiration date thereof,
the issuing company will endeavor to mail 30 days written notice to the below named certificate holder, but failure to mail
such notice shall impose no obligation of any kind upon the company.
NAME AND ADDRESS OF CERTIFICATE HOLDER AUTHORIZED REPRESENTATIVE
City Of Fort Worth
Development Department
1000 Th rockmorton Street
y.'
Fort Worth,Texas 76102
le �
ExxonMobii Risk Management,Inc.