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HomeMy WebLinkAboutContract 47983-EC2 CITY SECRETARY CONTRACT NO. -t7293 ESTOPPEL CERTIFICATE This Estoppel Certificate is made as of December 19 , 2017, by the undersigned, the City of Fort Worth. a home rule municipal corporation of Tarrant County, Texas (" ly"), acting herein by and through its duly authorized City Manager its duly authorized Assistant City Manager or Planning and Development Department Director provides this Estoppel Certificate under that certain Right of Way Encroachment Agreement (the"Agreement") with West 7a' 1, LLC, a Delaware limited liability company ("Licensee"), dated as of July 13, 2016 and recorded July 19, 2016, under Clerk's File No. D216160343, Official Public Records, Tarrant County, Texas, relating to that certain real property located at 2301 West 5d' Street, Fort Worth, Tarrant County, Texas, as more particularly described in the Agreement (the "Prope "). The City gives this Estoppel Certificate in connection with the sale, transfer and assignment of such Property into a condominium regime commonly known as the "Alta Left Bank Condominiums", in its capacity to oversee compliance of the Agreement with respect to the Property, to West 7`h 1, LLC, a Delaware limited liability company or its permitted assigns ("Declarant") and that Declarant intends to obtain title insurance from Chicago Title Insurance Company ("Title Company") and a loan or loan modification in connection with its transfer of the Property into the condominium regime, and the City hereby certifies to Licensee, Declarant, the Title Company and any lender as follows: 1. The Agreement is in full force and effect and City has not assigned or otherwise transferred its interest in the Agreement. 2. A true and correct copy of the Agreement, together with all amendments thereto, is attached as Schedule A to this Estoppel Certificate. 3. The term of the Agreement is 30 years commencing on July 13, 2016. 4. Licensee paid the $325.00 Application Fee. As of the date hereof, the annual license fee is $.56 per square/linear foot of the encroachment area, payable annually and thereafter. The initial license fee was paid to the City upon execution of the Agreement and the next payment of the annual license fee in the amount of$ 1. is due on January 1, 2018. 5. License has constructed, installed and is currently maintaining the Irrigation Line improvements encroaching into the Public Right-of-Way and there are no outstanding construction or maintenance obligations under the Agreement. 6. No default by Licensee has occurred under the Agreement which is continuing. The City acknowledges that this Estoppel Certificate may be delivered to, and relied upon by, Licensee, Purchaser,the Title Company and any prospective lender to Purchaser, and their respective successors and assigns. V- Q 9�y C'�G OFFICIAL RECORD CITY SECRETARY FT.WORTH ESTOPPEL.CERTIFICATE—ROW ENCROACHMENT AGREEMENT ,TX Page I Executed as of , 2017. THE CITY OF FORT WORTH By:. Name: Title: ATTEST: Approved as to Form and Legality fiv City Secre�ar : '% ssistant Ci Attorney M&C:- 1295:- ESTOPPEL &C:1295:ESTOPPEL CERTIFICATE—ROW ENCROACHMENT AGREEMENT Page 2 SCHEDULE A AGREEMENT [ATTACHED] ESTOPPEL CERTIFICATE—ROW ENCROACHMENT AGREEMENT Page 3 Gardere0l-10920613v.1 CITY SECRETARY CONTRACT NO. J4! 14 N'' RIGHT OF WAY ENCROACHMENT AGREEMENT (C03131ERC1AL) THIS AGREEMENT is made and entered into by and between the City of Fort Worth, a home rule municipal corporation of Tarrant County, Texas ("City"), acting herein by and through its duly authorized City Manager, its duly authorized Assistant City Manager or Planning and Development Department Director, and Centergy River I a Texas limited partnership "Licensee", acting herein by and through its duly authorized Managing Member, the owner of the real property located at 599 Harrold Street Fort Worth Texas 76107("Property"). RECITALS WHEREAS, Licensee is the owner of certain real property situated in the City of Fort Worth, Tarrant County, Texas, more particularly described in the attached Legal Description of the Property; and WHEREAS, the City has a street, alley, sidewalk, and/or other public right-of- way(individually or collectively,the "Public Right-of-Way") adjacent to the Property as shown on the map attached to this Agreement as Exhibit"A"and incorporated herein for all purposes; and WHEREAS, Licensee desires to construct/place and maintain certain improvements which will encroach onto the Public Right-of-Way; and WHEREAS, City will allow the encroachment under the terms and conditions as set forth in this Agreement to accommodate the needs of the Licensee, NOW,THEREFORE, the City and Licensee agree as follows: AGREEMENT 1. City, in consideration of the payment by Licensee of the fee set out below and covenants and agreements hereinafter contained, to be kept and performed by Licensee, hereby grants permission to Licensee to encroach upon, use and/or occupy portions of the space under, on, and/or above the City's Public Right-of-Way to construct/install and/or allow to remain, certain improvements for the purpose of IRRIGATION LINES (whether one or more,the"Improvements") as described in and at the location shown on Exhibit "A" but only to the extent shown thereon. Upon completion of the Improvements, Licensee agrees to be responsible for maintaining the Improvements. Licensee shall not expand or otherwise cause the Improvements to further infringe in or on City's Public Right-of-Way beyond what is specifically described in the Exhibit(s) attached hereto. 2015 ROW Encroachment Agreement-Commercial Page 1 of 12 - rev.02/2015 2. All construction, maintenance and operation in connection with such Improvements, use and occupancy shall be performed in strict compliance with this Agreement and the City's Charter, Ordinances and Codes, and in accordance with the directions of the City's Director of Transportation and Public Works, or his or her duly authorized representative. Licensee shall submit all plans and specifications to the applicable Director or his or her duly authorized representative prior to the construction of the Improvements. Licensee shall not commence construction of the Improvements until receiving written approval by the Director, but such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon completion of the construction and installation of the Improvements, there shall be no other encroachments in, under, on or above the surface area of the Public Right-of-Way except as described herein and depicted on 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 any affected utility companies and the appropriate agencies of the State of Texas 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 in the reasonable discretion of the Director of Transportation and Public Works, or his or her duly authorized representative. 5. Upon prior written notice to Licensee, except in the case of an emergency, Licensee agrees that City may enter and utilize the referenced areas at any time for the purpose of installing, repairing, replacing, or maintaining improvements to its public facilities or utilities necessary for the health, safety and welfare of the public or for any other public purpose. City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Improvements installed by Licensee, but City will make reasonable efforts to minimize such damage. 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 2015 ROW Encroachment Agreement-Commercial Page 2 of 12 rev.02/2015 made more costly by virtue of the construction, maintenance or existence of the Improvments and use, Licensee shall pay to City an additional amount equal to such additional cost as reasonably determined by the Director of Transportation and Public Works or the Director of the Water Department, or said Director's duly authorized representative. 6. Licensee agrees to pay to City at the time this Agreement is requested an application fee of$325.00 in order to defray all costs of inspection and supervision which City has incurred or will incur as a result of the construction, maintenance, inspection or management of the encroachments and uses provided for by this Agreement. Licensee agrees to pay a fee in the amount of$.56 per square/linear foot of the encroachment area upon elcecution of this Agreement and annually thereafter 7. The term of this Agreement shall be for 30 years commencing on the date this Agreement is executed by City. However, this Agreement shall terminate upon Licensee's non-compliance with any of the terms of this Agreement. City shall notify Licensee in writing of the non-compliance, and if not cured within 30 days, this Agreement shall be deemed terminated unless such non-compliance is not susceptible to cure within 30 days, in which case this Agreement shall be deemed terminated in the event that Licensee fails to commence and take such steps as are necessary to remedy the non-compliance within 30 days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with continuity to remedy same. S. Upon termination of this Agreement, Licensee shall at no expense to City remove the Improvements encroaching into the Public Right-of-Way, and restore the Public Right-of-Way to a condition acceptable to the Director of Transportation and Public Works, or his or her duly authorized representative, in accordance with then-existing City specifications. It is understood and agreed by Licensee that if this Agreement terminates and Licensee fails to remove the Improvements and restore the Public Right-of-Way, Owner hereby gives City permission to remove the Improvements along with any supporting structures, restore the Public Right-of-Way, and assess a lien on the Property for the costs expended by the City in taking such actions. 9. It is further understood and agreed between the parties hereto that the Public Right-of-Way to be used and encroached upon as described herein, is 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 Texas Legislature; and that City cannot contract away its duty and its legislative power to 2015 ROW Encroachment Agreement-Commercial Page 3 of 12 rev 02/2015 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 Public Right-of-Way to be used for any other public purpose, including but not 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, that this Agreement shall terminate upon 60 days' written notice to Licensee. In the event this Agreement is terminated under this Section 9, Licensee shall perform the obligations regarding removing the Improvements and restoring the Public Right-of-Way described in Section 8. 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 any property in which a third party may have an interest. Licensee agrees that it will obtain all necessary permissions 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 the Improvements,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 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. 2015 ROW Encroachment Agreement-Commercial Page 4 of 12 rev.02/2015 LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS 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, ARISING OUT OF OR IN CONNECTION WITH, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF THE IMPROVEMENTS 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, ELECTED OFFICIALS, 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 THE IMPROVEMENTS AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES,OR TRESPASSERS. 15. 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 risks related to the proposed use and occupancy of public property as described or depicted in Exhibit "A". The amounts of such insurance shall be not less than $1,000,000 Commercial General Liability with the understanding and agreement by Licensee that such insurance amounts may be revised upward at City's option and that Licensee shall so revise such amounts promptly following notice to Licensee of such requirement. Such insurance policy shall not be canceled or amended without at least 30 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" and incorporated herein for all purposes. 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 term of this Agreement and until the removal of all encroachments and the cleaning and restoration of the Public Right-of-Way. All insurance coverage required herein shall include coverage of all Licensees' contractors and subcontractors. 2015 ROW Encroachment Agreement-Commercial Page 5 of 12 rev.02/2015 16. Licensee agrees to deposit with the City when this Agreement is executed a sufficient sum of money to be used to pay the fees to record this Agreement in the Real Property Records of Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth. 17. In any action brought by the City for the enforcement of the obligations of the 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 Agreement without the prior written approval of the City, andany attempted assignment without such written approval shall be void. In the event Licensee conveys the Property, Licensee may assign all of its rights and obligations under this Agreement to the new owner of the Property, and Licensee shall be deemed released from its duties and obligations hereunder upon City's approval in writing of such assignment, which approval shall not be unreasonably conditioned or withheld. Foreclosure by a secured lender of Licensee or assignment to a secured lender by Licensee in the event of default or otherwise shall not require City approval provided that said lender notifies City in writing within 60 days of such foreclosure or assignment and assumes all of Licensees' rights and obligations hereunder. However, no change of ownership due to foreclosure or assignment to any secured lender of Licensee shall be effective as to City unless and until written notice of such foreclosure or assignment is provided to City. 19. THE PARTIES AGREE THAT THE DUTIES AND OBLIGATIONS CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 20. Any cause of action for breach of this Agreement shall be brought in Tarrant County, Texas. This Agreement shall be governed by the laws of the State of Texas. 21. This Agreement shall be binding upon the parties hereto, their successors and assigns. 2015 ROW Encroachment Agreement-Commercial Page 6 of 12 rev.02/2015 [SIGNATURES APPEAR ON FOLLOWING PAGE] 2015 ROW Encroachment Agreement-Commercial Page 7 of 12 rev.02/2015 THIS AGREEMENT may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. Licensee: Centergy River I LP a Texas limited partnership By: Centergy West 7th GP, LLC a Texas limited liability company, General Partner By: Wes m er Its M aging Member C itN CIqRand!fHa A"ood"�nH T , By: Director Planning and Development Department Date: ,20_1�, ATTEST: Approved As To Form and Legality �0 .t , R / - q 1 � City Secretary q 0 q Assistant City Attorney FNO M&C REQUIIn- OFFICIAL RECORD' CITE'SECRETARY WORTH,TQC 2015 ROW Encroachment Agreement-Commercial Page 8 of 12 rev.02/2015 STATE OF TEXAS § COUNTY OF TARRANT § /41 This instrument was acknowledged before me , 201 byftudzff Harwood, Director of the Planning -velopment cpartment of the tty f Fort Worth, on behalf the City of Fort Wort . CASSANDRA F.oF OR EMAN Notaty?uo13 t of rex otar Public, State of Texas y Expires s t s After Recording Return to: Cassandra Foreman Planning and Development Department 1000 Throckmorton Street Fort Worth TX, 76102 2015 ROW Encroachment Agreement-Commercial Page 9 of 12 rev.02/2015 STATE OF Texas § COUNTY OF Dallas § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared West Miller, Managing Member, 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 Centergy River I LP a Texas limited partnership,and in the capacity therein stated. IVEN UNDER MY HAND AND SEAL OF OFFICE this day of 20-)(P—. uj�L-, IJ4 a Notary Public in and for the State of Texas E MICHELLE JANAN MITCHELLNorary Public.State of TexasMy Commission Expires SOPtembet 21. 2Qt4 2015 ROW Encroachment Agreement-Commercial Page 10 of 12 rev.02/2015 LEGAL DESCRIPTION OF THE PROPERTY LOT 1R AND 2R BLOCK 11 OF LOTS 1R AND 2R BLOCK 11 OF THE EVENAS PEARSON WESTWOOD ADDITION LOTS 311 AND 4R BLOCK I1 K.M.VAN ZANDT'S ADDITION AN ADDITION TO THE CITY OF FORT WORTH,TARRANT COUNTY TEXAS ACCORDING TO THE PLAT THEREOF RECORDED UNDER CLERKS FILE NUMBER 215272429 EXHIBIT`•A" Location and Description of Encroachment and Improvements 2015 ROW Encroachment Agreement-Commercial Page 11 of 12 rev. 02/2015 2015 ROW Encroachment Agreement-Commercial Page 12 of 12 rev.02!2015 o t j DAKOTA STREET 1 j 1 uj LU N I iC3 LOT 1R1, ccI LOT 1R, BLOCK 4R co BLOCK 11 p I J ' O L--.7 Q ' l 1 I I APPROX. 39 LF IRRIGATION IN STREET LOT 21% BLOCK 11 D215272429 i W. 5TH STREET I LEFT BANK Stante599 O�D STREET EXHIBIT'A' 6nonn�wreo.aarim c 0215272429 29ENCROACHMENT AREA FOR °""'""'=° IRRIGATION CITY OF FT WORTH TME tFii�TMIitF.iQIM12i CiPVttlMlt GATE:07A61fI018 SCALE:N.T.S. DRAWN BY:JRN FIi.E:Q10ii37i4-ROVkEXti.dwy PROJECT No.R01P/157-3WW ..,w,rm r+.,,r.��xrw mucarxw�e�zciacrs�Acrw e.nw.a.�.ac���tsea��«�.ngm.,+r+>,au a.m<o t++r Contract Compliance Manager By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance and reporting requirements. Janie S. Morales Development Manager Page 1 of 14 D216160343 711912016 8:28 AM PGS 14 Fee: $68.00 Submitter.CSC ERECORDING SOLUTIONS Electronically Recorded by Tarrant County Clerk in Official Public Recordscia M;AT I.�TifiRY� C)::. i r RIGHT OF WAY ? 1,,,, J — $ 3 oZ!N ENCROACHMENT AGREEMENT (COMMERCIAL) THIS AGREEMENT is made and entered into by and between the City of Fort Worth, a home rule municipal corporation of Tarrant County, Texas ("City"), acting herein by and through its duly authorized City Manager, its duly authorized Assistant City Manager or Planning and Development Department Director, and WEST 7m 1, LLC A DELAWARE LIMITED LIABILITY COMPANY", acting herein by and through its duly authorized Managing Member, the owner of the real property located at 2301 West 5"'Street Fort Worth Texas 76107("Property'). RECITALS WHEREAS, Licensee is the owner of certain real property situated in the City of Fort Worth, Tarrant County, Texas, more particularly described in the attached Legal Description of the Property;and WHEREAS, the City has a street, alley, sidewalk, and/or other public right-of- way(individually or collectively,the"Public Right-of-Way")adjacent to the Property as shown on the map attached to this Agreement as Exhibit"A" and incorporated herein for all purposes;and WHEREAS, Licensee desires to construct/place and maintain certain improvements which will encroach onto the Public Right-of-Way;and WHEREAS, City will allow the encroachment under the terms and conditions as set forth in this Agreement to accommodate the needs of the Licensee, NOW,THEREFORE,the City and Licensee agree as follows: AGREEMENT 1. City, in consideration of the payment by Licensee of the fee set out below and covenants and agreements hereinafter contained, to be kept and performed by Licensee, hereby grants permission to Licensee to encroach upon,use and/or occupy portions of the space under, on, and/or above the City's Public Right-of-Way to construct/install and/or allow to remain, certain improvements for the purpose of IRRIGATION LINES (whether one or more,the"Improvements")as described in and at the location shown on Exhibit "A" but only to the extent shown thereon. Upon completion of the Improvements, Licensee agrees to be responsible for maintaining the Improvements. Licensee shall not expand or otherwise cause the Improvements to further infringe in or on City's Public Right-of-Way beyond what is specifically described in the Exhibit(s) attached hereto. 5 6 7� 2015 ROW Encroachment Agreement-Commercial Page 1 of 12 rev.02/2015 -ACS/TRC- TARRANT COC: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 1 Of 14 Page 2 of 14 2. All construction, maintenance and operation in connection with such Improvements, use and occupancy shall be performed in strict compliance with this Agreement and the City's Charter, Ordinances and Codes, and in accordance with the directions of the City's Director of Transportation and Public Works, or his or her duly authorized representative. Licensee shall submit all plans and specifications to the applicable Director or his or her duly authorized representative prior to the construction of the Improvements. Licensee shall not commence construction of the Improvements until receiving written approval by the Director, but such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon completion of the construction and installation of the Improvements, there shall be no other encroachments in, under, on or above the surface area of the Public Right-of-Way,except as described herein and depicted on 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 any affected utility companies and the appropriate agencies of the State of Texas 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 in the reasonable discretion of the Director of Transportation and Public Works, or his or her duly authorized representative. 5. Upon prior written notice to Licensee, except in the case of an emergency, Licensee agrees that City may enter and utilize the referenced areas at any time for the purpose of installing, repairing, replacing, or maintaining improvements to its public facilities or utilities necessary for the health, safety and welfare of the public or for any other public purpose. City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Improvements installed by Licensee, but City will make reasonable efforts to minimize such damage. 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 2015 ROW Encroachment Agreement-Commercial Page 2 of 12 rev.022015 -ACS/TRC- TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 2 of 14 Page 3 of 14 made more costly by virtue of the construction, maintenance or existence of the Improvments and use, Licensee shall pay to City an additional amount equal to such additional cost as reasonably determined by the Director of Transportation and Public Works or the Director of the Water Department, or said Director's duly authorized representative. 6. Licensee agrees to pay to City at the time this Agreement is requested an application fee of$325.00 in order to defray all costs of inspection and supervision which City has incurred or will incur as a result of the construction,maintenance, inspection or management of the encroachments and uses provided for by this Agreement. Licensee agrees to pay a fee in the amount of$.56 per square/linear foot of the encroachment area upon execution of this Agreement and annually thereafter. 7. The term of this Agreement shall be for 30 years commencing on the date this Agreement is executed by City. However, this Agreement shall terminate upon Licensee's non-compliance with any of the terms of this Agreement. City shall notify Licensee in writing of the non-compliance, and if not cured within 30 days, this Agreement shall be deemed terminated unless such non-compliance is not susceptible to cure within 30 days, in which case this Agreement shall be deemed terminated in the event that Licensee fails to commence and take such steps as are necessary to remedy the non-compliance within 30 days after written notice specifying the same, or having so commenced,thereafter fails to proceed diligently and with continuity to remedy same. 8. Upon termination of this Agreement, Licensee shall at no expense to City remove the Improvements encroaching into the Public Right-of-Way, and restore the Public Right-of-Way to a condition acceptable to the Director of Transportation and Public Works,or his or her duly authorized representative,in accordance with then-existing City specifications. It is understood and agreed by Licensee that if this Agreement terminates and Licensee fails to remove the Improvements and restore the Public Right-of-Way, Owner hereby gives City permission to remove the Improvements along with any supporting structures, restore the Public Right-of-Way, and assess a lien on the Property for the costs expended by the City in taking such actions. 9. It is further understood and agreed between the parties hereto that the Public Right-of-Way to be used and encroached upon as described herein, is 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 Texas Legislature; and that City cannot contract away its duty and its legislative power to 2015 ROW Encroachment Agreement-Commercial Page 3 of 12 rev.02/2015 *ACS/TRC* TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 3 Of 14 Page 4 of 14 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 Public Right-of-Way to be used for any other public purpose, including but not 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, that this Agreement shall terminate upon 60 days' written notice to Licensee. In the event this Agreement is terminated under this Section 9, Licensee shall perform the obligations regarding removing the Improvements and restoring the Public Right-of-Way described in Section 8. 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 any property in which a third party may have an interest. Licensee agrees that it will obtain all necessary permissions 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 the Improvements,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 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. 2015 ROW Encroachment Agreement-Commercial Page 4 of 12 rev.02/2015 •ACS/TRC• TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 4 Of 14 Page 5 of 14 LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS,AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS 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, ARISING OUT OF OR IN CONNECTION WITH, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF THE IMPROVEMENTS 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, ELECTED OFFICIALS, 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 THE IMPROVEMENTS AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES,OR TRESPASSERS. 15. 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 risks related to the proposed use and occupancy of public property as described or depicted in Exhibit"A". The amounts of such insurance shall be not less than $1,000,000 Commercial General Liability with the understanding and agreement by Licensee that such insurance amounts may be revised upward at City's option and that Licensee shall so revise such amounts promptly following notice to Licensee of such requirement. Such insurance policy shall not be canceled or amended without at least 30 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" and incorporated herein for all purposes. 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 term of this Agreement and until the removal of all encroachments and the cleaning and restoration of the Public Right-of-Way. All insurance coverage required herein shall include coverage of all Licensees' contractors and subcontractors. 2015 ROW Encroachment Agreement-Commercial Page 5 of 12 rev.022015 *ACS/TRC* TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 5 0£ 14 Page 6 of 14 16. Licensee agrees to deposit with the City when this Agreement is executed a sufficient sum of money to be used to pay the fees to record this Agreement in the Real Property Records of Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth. 17. In any action brought by the City for the enforcement of the obligations of the 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 Agreement without the prior written approval of the City, andany attempted assignment without such written approval shall be void. In the event Licensee conveys the Property,Licensee may assign all of its rights and obligations under this Agreement to the new owner of the Property, and Licensee shall be deemed released from its duties and obligations hereunder upon City's approval in writing of such assignment, which approval shall not be unreasonably conditioned or withheld. Foreclosure by a secured lender of Licensee or assignment to a secured lender by Licensee in the event of default or otherwise shall not require City approval provided that said lender notifies City in writing within 60 days of such foreclosure or assignment and assumes all of Licensees' rights and obligations hereunder. However, no change of ownership due to foreclosure or assignment to any secured lender of Licensee shall be effective as to City unless and until written notice of such foreclosure or assignment is provided to City. 19. THE PARTIES AGREE THAT THE DUTIES AND OBLIGATIONS CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 20. Any cause of action for breach of this Agreement shall be brought in Tarrant County,Texas. This Agreement shall be governed by the laws of the State of Texas. 21. This Agreement shall be binding upon the parties hereto, their successors and assigns. 2015 ROW Encroachment Agreement-Commercial Page 6 of 12 rev.02/2015 *ACS/TRC* TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 6 Of 14 Page 7 of 14 [SIGNATURES APPEAR ON FOLLOWING PAGE] 2015 ROW Encroachment Agreement-Commercial Page 7 of 12 rev.022015 *ACS/TRC* TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 7 Of 14 Page 8 of 14 THIS AGREEMENT may be executed in multiple counterparts, each of which shall be considered an original,but all of which shall constitute one instrument. Licensee:WEST 7T" 1, LLC A DELAWARE LIMITED LIABILITY COMPANY By:WEST 7T"HOLDINGS, LLC, ITS SOLE MEMBER BY:WOOD WEST 7T", LLC, ITS MANAGING MEMBER BY: WP WEST DEVELOPMENT ENTERPRISES, LLC ITS MANAGW ^ By: RYAN MILLS Its VICE PRESIDENT City: CITY } 'Q 'N, By:_ _. Rt arw•txod Director Planning and Development Department Date: ,20t ATTEST: Approved As To Form and Legality City Secret y 1 i I Assistant City Attorney 2015 ROW Encroachment Agreement-Commercial Page 8 of 12 rev.02/2015 *ACS/TRC* TARRANT Doc: 000160343 Data: 07/19/2016 Vol: 0000000 Page: 00000 Page: 8 Of 14 Page 9 of 14 STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on , 201 by Remdel}wwood, Director of the Planning and Developmentt—' tinent of the Ci of Fort Worth,on behalf the City of Fort Worth. N . ary Public, State of Texas CASSANDRA F FOREMAN :. � Notary Public.State of Texas t t.', My Commission Expd9S April 26,2017 After Recording Return to: Cassandra Foreman Planning and Development Department 1000 Throckmorton Street Fort Worth TX,76102 2015 ROW Encroachment Agreement-Commercial Page 9 of 12 rev.02/2015 •ACS/TRC+ TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 9 Of 14 Page 10 of 14 STATE OF Texas § COUNTY OF Dallas § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared RYAN MILLER,VICE 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 WEST 7TH 1, LLC A DELAWARE LIMITIED LIABILITY COMPANY,and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this `-3 day of J t .20-1-. Notary Public in and for the State of Texas MICHELLE JANAN MITCHELL Notary"Ic.State of Texas ��'. ►+�v Commission E September 21,2019 2015 ROW Encroachment Agreement-Commercial Page 10 of 12 rev.02/2015 •ACS/TAC* TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 10 Of 14 Page 11 of 14 LEGAL DESCRIPTION OF THE PROPERTY LOT 1R BLOCK 5R OF LOTS IRI AND 2R BLOCK 5R K.M.VAN ZANDT'S ADDITION TO THE CITY OF FORT WORTH TARRANT COUNTY TEXAS ACCORDING TO THE PLAT THEREOF RECORDED UNDER CLERKS FILE NUMBER D21569646 2015 ROW Encroachment Agreement-Commercial Page I I of 12 rev.02/2015 *ACS/TRC* TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 11 Of 14 Page 12 of 14 EXHIBIT"A" Location and Description of Encroachment and Improvements 2015 ROW Encroachment Agreement-Commercial Page 12 of 12 rev.02/2015 *ACS/TRC* TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 12 Of 14 Page 13 of 14 W. 5TH STREET W.�THSTREET --------------------------------�� - - r - -T --------------------------------------------------------- APPROX. 283 LF IRRIGATION IN STREET LOT A BLOCK SR D215169646 ---------------------------------------------------------- --------- i i -.. - j4 w U3 C/) LOT 2K Z BLOCK SR U) 0 1LO Lar OR 0 : I BLOCK OR f B L 1 0 um MT"K L" i 000.- 0 < ----------- T W. 7TH STREET LEFT BANK C 2301 W.5RN Stante D21516HST EET EXHIBIT 9646 ENCROACHMENT AREA FOR CITY OF FT WORTH IRRIGATION t16'5' ,a VJVVE)M d1q PROJECT No 80104157-3=4 L *ACS/TRC* TARRANT Doc: 000160343 Date: 07/19/2016 Vol: 0000000 Page: 00000 Page: 13 Of 14