HomeMy WebLinkAboutContract 45445 t
CONTRACT
RIGHT OF WAY
ENCROACHMENT A EMENT
(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 a.ruthon*zed City Manager or its duly authorized Assistant City Manager er r
Planning d Development Department Director, hereinafter referred to as the "City"', and
"W TOO Realty, a Texas limited liability company, acting by and th ro ugh Frank Kent
Motor Company, a Texas corporation'. its Sole Member , acting herein by and through
its duly authorized William P. Churchill, its President hereinafter referred to as
"Licensee". Owner of the property located at 110'1 W Magnolia Fort Worth TX 76104
4
("Property")..
AGREEMENT
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,
Impro ement 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 Improvement(s) are described as follows,.-
dew steel awning equating 8'8'sqft over the property hne
The location and description of said Improvement and the enc roachment s 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 erformed in strict compliance with this
OFFICIAL RECO
CITY SECRETARY RECEIVED
2012 ROB Encroachment Agreement-Cora erffe WORTH,TX Page I of
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 enc,roachments, in, under, on or above the surface area of the
I
streets,, alleys, sidewalks and other public, rights-of-way involved, except as described
herein and shown on the hereinabove 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
and agrees
public or for any other plubilic purpose. In this regard Licensee understands,
'that, City shall bear no responsibility or liability for damage or disruption of
2012 ROW Encroachment Agreement-Commercial Page 2 of 101
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 mcurred
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 to 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 falls to remove the
Improvement, Owner hereby gives City permission to remove the Irnrovernent and any
supporting, structures and assess a lien on the Property for the costs expended by the City
to remove such Improvement.
9.
2 012 ROW Encroachment Agreement-Commercial Page 3 of 10
It i's 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,
a
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 to hereof'deten-ni.ne 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.
13.
20 12 ROW Encroachment Agreement-Commercial Page 4 of 10
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, se,ry ts
an
employees, contractors., subcontractors, licensees, and invitees. The doctrine of
res,p and eat 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.
I .
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,
2 012 ROW encroach,Went Agreement-Commercial Page 5 of 101
CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR
TRESPASSERS.
1-5.
While this, Agreement is in effect, Licensee agrees to furnish City with a,
Certificate of Insurancel, 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 Exhibit 11131'. 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 to 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
Liic�ens,ees,' contractors.
M.
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
2 0,12 ROW Encroachment Agreernent-Commercial Page 61 of 10
recorded, the original shall be returned to the City Secretary of the City of Fort Worth,
Texas.
170
In any action brought by the City for the enforcement of the obligations of
Licenseel 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,
0
p 1' deges, or duties, under is contract wi I
�r vi er th* thout the pr*or written approval of the City
Manager or designee. Any attempted assignment without prior written approval will be
col ol .
19.
THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION
CONTAINED IN PARAGRAPH 8 SHALL SURVIVE, THE TERMINATION OF
THIS; AGREEMENT.
200,
This Agreement shall be binding upon the parties hereto, their successors and
assigns.
EXECUTED, this 4_day of 120
rj
20!12 ROW Encroachment Agreement-Commercial Page 7 of 10
4"9
C,Ity Licensee
City offort Worth CW TOO Realty, L
By : Frank Kent Motor Company
Its Sole Member
1%
Randle Harwoo ' Name William P. Churchill
Director Title: President
Planning and Development
ATTEST: Approved As To Form and Legal ity
City Secreiar� si
Asstant City Attorney
NO M&C RJ4 QUIREID
OFFICIAL RIECORD
CITY SECRETARY
FT,1 WORTHj 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,1
oin
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/shie
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.
EN ! NDiER AND AND SEAL OF OFFICE thiii day olf
20
own N! All
CAM
Rill as
Notalry
rn
A'S Aptil
ROOM
lip Notary Public in and for the
State of Texas
2012 ROW Encroachment Agreement-Comi-nerciall, Page 9 of 10
XN
STATE OF TEXAS §
COLTNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
Texas, on this day personally appeared Will Churchill, President, 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 CW TOO Realty, LLB", and in the capacity therein stated.,
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
20j#
DeWoh Kay Cdd
C' COMM00n Exom
5
NOF
Notary Public in and for the
State of Texas
2012 ROW Encroachment Agreement-Commercial Page 1 0 of 10
KENT AND CO .
1101 W. MAGNOLIA
F TEXAS
76104
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AC CERTIFICATE OF LIABILITY INSURANCE,
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REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE TI!FI'C.ATE HOLDER..
IMPORTANT: If the certificate holder Is an ADDITIONAL AFL INSURED,the policy(ies),'must be endorsed. It SUBROGATION IS WAIVED,subject to
the terms and conditions of'the policy,certain policies may requilre an endorsement. A statement nt on this certificate,does not confer ri hat to the
certificate holder in lieu of such endorsement ..
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CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED BIBEC HEREIN IS SUBJECT TO ALL THE TERMS,
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DESCRII 71ON OF OPERATIONS I LOCATIONS,I VEHICLES (Attach ACORD 101,Additional Remarks Schedule,If more sip uce is required)
ISM 1102"03-09, _ Schedule of M r gagee Holders an Loss Payees
CA 210148 2 gg-Glarage Liability-Designated Insured
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Texas Insurance Certificate Letter
Named Insured Schedule
Statement of alIues
CERTIFICATE HOLDER CANCELLATION!
1 ABOVE DESCRIBED POLICIES BE CANCELLED:'BEFORE
�HC�ul1�ANY THE A'�C)
THE EXPIRATION DATE THEREOF11 NOTICE W04LL BE DELIVERED IN
City of Ft.Worth ort M ACC ORDANCE WITH THE POLICY PROVISIONS,
1 000 Th roc m o rtl n St.
Ft.Worth TX 761012 AIJTHI RUED REPRESENTATIVE
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