HomeMy WebLinkAbout032249 - General - Contract - XTO ENERGY, INCORPORATED `i S1 CRETARX"
�OiIJTRACT NO.
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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 City Manager or duly designated Assistant City
Manager, hereinafter referred to as the "City", and XTO Energy, Inc
acting herein by and through its duly authorized L. Frank Thomas. III
hereinafter referred to as "Grantee", Owner of the property located at
110 W. 7`h 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,
sidewalks and other public rights-of-way, such Improvement(s) are described as
follows:
egM—=g at 30 7 74, –m-stall—m—stallnew junction box over exis mg and Mail
app. 100' of 2" EMT from existing junction box to building entry location.
Coredrill ui ing and install a sleeve thru wall and install an x
junction box. Install 3-1.25" HDPE conduits in paving app. 350' to proposed
concrete manhole location. Install 3-1.25" ucts app. from
manhole to 210 6''. Coredrill building and install a 4" GRC sleeve thru wall and
nista an 8"x8"x24"function box. Install app. 70' of 2" EMT from building entry
to existing 2" EMT conduit. Furnish and install 950' of 96 strand Super 50 fiber
cable. Furnish and install 2 each 144 Fiber Term Panels. Terminate 48 strand of
fiber with SC connectors at each panel.
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
� .. �1L� ,:a
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:
Five Hundred, Thirty-five and no/100 Dollars_($535. 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 because
the Business ceases to operate 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.
9.
It is further understood and agreed upon 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 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 rights-of-way to be used for any other public purpose,
including but not being limited to underground, surface or overhead
communication, drainage, sanitary sewerage, transmission of natural gas or
electricity, or any other public purpose, whether presently contemplated or not,
then this Agreement shall be automatically canceled or 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.
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,
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
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 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.
8 'CAT __
After being recorded, the original shall be returned to the City Secretary of the
City of Fort Worth, Texas
17.
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 y
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EXECUTED this day of_ 12005.
CITY OF FO WORTH, NTQ X�—C A�V , GRANTEE
By. y. �
Dale Fisseler, Assistant City Mgr. ,�� s� vmds, T ✓P�T
ATTEST: APPROVED O FORM AND LEGALITY
City Secre ry ,j55i 5b.,f City Attorney
. .O-ACEL -
Cmtr t uthor' zatioxt
Date
CITY
10 u
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 Dale Fisseler, 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 Fort Worth,
and in the capacity therein stated.
GIVEN UNDER MY NAND AND SEAL OF OFFICE this 10j}�)_day of
_ ts+ , 20oS
.1Za�u�
Nota Public in and for the
KATHY F.DURHAM
Notary
s= MY COMMISSION EXPIRES State of Texas
a ,vuuq 24,2000
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 L. •-�.�� oQ s .
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 n therein expressed, as the act and deed of
and in the capacity therein
sta d.
IVEN UNDER MY HAND AND SEAL OF OFFICE this day of
20 e-5.
r
Notary Public in and for the
State of Texas
ANITA WILSON
MY COMMISSION EXPIRES
' ALyW 10,2007
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XTO ENERGY INC
CITY OF FORT WORTH
ATTACHMENT TO CERTIFICATE OF INSURANCE
The City of Fort Worth, Texas, its officials, employees, agents and
officers are Additional Insured on all policies other than Employers
Liability coverage under the Workers ' Compensation policy. All
policies include a Waiver of Subrogation providing rights of recovery
in favor of the City of Fort Worth.
The following shall apply to all policies : This policy will not be
canceled or non-renewed without 30 days advance written notice to the
owner and the city except when this policy is being canceled for
non-payment of premium, in which case 10 days advance written notice
is required.
OPERATORS EXTRA EXPENSE INSURANCE
LIMIT OF LIABILITY (for 100% interest unless otherwise stated) :
Wells (Areas I , II , IIW, III , IV)
$5, 000, 000 (100%) any one accident or occurrence
Combined Single Limit
Care, Custody and Control
$1, 000, 000 (1000) any one accident or occurrence
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 8/9/2005
DATE: Tuesday, August 09, 2005
LOG NAME: 06XTO CONDUIT REFERENCE NO.: **C-20895
SUBJECT:
Authorization to Enter into an Encroachment Agreement with XTO Energy, Incorporated, Authorizing
Use of the Right-of- Way for Underground Conduits in West 6th Street and in Houston Street
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into an Encroachment
Agreement with XTO Energy, Inc., authorizing use of the right-of-way for underground conduits in West 6th
Street and in Houston Street.
DISCUSSION:
L. Frank Thomas, III, Vice President of XTO Energy, Inc., is requesting use of the right-of-way to install
underground conduits crossing the 200 Block of West 6th Street (from the Petroleum building) and under
the south sidewalk of 200 Block of West 6th Street and across the 700 block of Houston Street to the Baker
Building. The conduit will contain fiber cable intended to provide voice and data services to XTO Energy,
Inc. employees located in the Petroleum building and the Baker building.
The Encroachment Committee has reviewed this request and is recommending approval subject to the
normal engineering requirements concerning City streets and sidewalks and associated utilities.
The conduit will be in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material effect on City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by: Dale Fisseler (6140)
Originating Department Head: Bob Riley (8901)
Additional Information Contact: Bob Riley (8901)
Logname: 06XTO CONDUIT Page 1 of I