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HomeMy WebLinkAbout025088 - General - Contract - Landmark Property, L.P.CITY SECRETARY CONTRACT NO. r6 95 CONSENT AGREEMENT STATE OF TEXAS 5 COUNTY 0Z;.TARRANT S 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 duly •designated Assistant City Manager, hereinafter referred to as the "City", and Landmark ProDertv,L.P. acting herein by and through its duly authorized Scott Christensen, Manager of Landmark GenPar, LLC, General Partner , hereinafter referred to as "Grantee". W I T N E S S E T H: 1. For and in consideration of the payment by Grantee of the application charge set out below and the true and faithful per- formance of the mutual covenants herein contained, City hereby grants to Grantee permission to encroach upon, -use and occupy portions of the space under, on and/or above the streets, alleys, sidewalks and other public rights -of -way as follows: _ see drawings Al, A2 and A3 attached hereto. QC0L�.5 co UTti' cG�GM T0 ViTL U `airnu The location and description of said encroachment is more particu- larly described in Exhibit "A", attached hereto, incorporated herein and made a part hereof for all purposes. All construction, maintenance and operation in connection with such encroachment, use and occupancy shall be performed in strict compliance with 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 therefor shall be subject to the prior written approval of the Director of Transportation and Public Works, or his duly authorized represen- tative, but such approval shall not relieve Grantee of responsi- bility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon completion of construction 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 City, shall make proper provision for the relocation and/or installation of any existing or future 2 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 polit- ical subdivisions. In the event that any installation, reinstal- lation, 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 ismademore costly by virtue of the con- struction, 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 representa- tive. 5. City may enter and utilize the referenced areas at any time for the purpose of installing or maintaining improvements neces- sary for the health, safety and welfare of the public or for any other public purpose. In this regard, City shall bear no respon- sibility or liability for damage or disruption of improvements installed by Grantee or its successors, but City will make reason- able efforts to minimize such damage. 6. In order to defray all costs of inspection and supervision which City has incurred, or might incur as a result of the con- struction or maintenance of the encroachments and uses provided for by this agreement, Grantee agrees to pay to City at the time this agreement is executed an application charge in the sum of _ three hundred Dollars ( $ 300.00 ) .and filing fee of thirty-five dollars ($35.00). 3 7. The initial term of this agreement shall be thirty (30) years, c,,ommencing,on the date this agreement is executed. 8. Upon the termination of this agreement for any reason what- soever, Grantee shall, at the option of City and at no expense to City, restore the public right-of-way and adjacent supporting structures to a condition acceptable. to the Director of Transportation and Public Works, or his duly authorized repre- sentative, and in accordance with then existing City specifica- tions. 9. It is further understood and agreed between the parties hereto that the City streets, alleys, sidewalks and other public rights -of -way, including the portions of such streets, alleys, sidewalks and other public rights -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 streets 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 streets for the use and benefit of the public. It is accordingly agreed that if the governing body of City, to wit, its City Council, should at any time during the term hereof determine in its sole discretion to use or cause or permit the said portions of the streets, alleys, sidewalks and other public rights -of -ways to be used for any other public purpose, including but not being limited to 4 underground, surface or overhead communication, drainage; sani- tary sewerage, transmission of natural gas or electricity, or any other publAc purpose, whether presently contemplated or not, then this agreement shall be automatically cancelled and terminated. 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. 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 encroachments and uses. i 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; that 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, 5 employees, contractors, subcontractors, licensees and invitees; that the doctrine of respondeatsuperior 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 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 connec- tion with, directly or indirectly, the construction, maintenance, occupancy, use, existence or location of said 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 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 connec- tion with any and all acts or omissions of Grantee, its officers, agents, servants, employees, contractors, subcontractors, licen- sees, invitees, or trespassers. A 15. 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: Property damage, per occurrence $100,000 Bodily injury, per person $250,000 Bodily injury or death, per occurrence $500,.000 with the understanding of and agreement by Grantee thatsuch 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 cancelled 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. 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 of Grantee's contractors. VA 16. Grantee agrees to deposit with 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 so recorded, the original hereof shall be returned to the City Secretary of the City of Fort Worth, Texas. 17. In any action brought by City for the enforcement of the obligations of Grantee, City shall be entitled to recover interest and reasonable attorneys' fees. 18. Grantee covenants and agrees that it will not assign all or any of its rights, privileges or duties under this contract with- out the prior written approval of City, and any attempted assign- ment without such prior written approval shall be void. 19. This agreement shall be binding upon the parties hereto, their successors and assigns. EXECUTED this J h Lday of , 19. CITNOFO WO11H, GRANTOR Landmark Property, L.P. GRANTEE By: By: Mike Groom e sst. City Manager Sot Christensen, Manager of ATT T: Landmark GenPar, LLC, General Partner City Secret APPROVED S TO ORM AND LEGALITY: Qy� City Attorney Date: i10 n'tcf2 viay Contract Authorization Date 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 Scott Christensen 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 consider- ation therein expressed, as the act and deed of and in the capacity therein stated. VEN UNDER MY HAND AND SEAL OF OFFICE this /' day of 19%%. �o`' '`•.�, LINDA McMILLAN NOTARY PUBUC STATE OF TEXAS My Comm. Exp. 02-01-2000 Notary Public in and for the State of Texas 10 STATE OF TEXAS COUNTY OF TARRANT BRE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Mike Groomer' 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 consider- ation 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 19 • • PATRICIA A. GARCIA NOTARY PUBLIC • State of Texas Comm. Exp. 03-31-3001 Notary Public in and for the State of Texas 07