HomeMy WebLinkAboutContract 50619 %910 11 12q
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CITY SECRETARY
RECEiV CONTRACT NO.
N co APR 11201 RIGHT OF WAY
4� CITY OFFOU"oRT a ENCROACHMENT AGREE44ENT
eye CITYSECREfARY COY (COMMERCIAL)
THIS AGREEMENT is made and entered into by and between the City of Fort
orth, 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
Heaven's Gate Restaurant [full legal name], a(n)
sole owner [type of entity]
"Licensee", acting herein by and through its duly authorized August Stanislawski [title],
the owner of the real property located at 3820 N Main Street ,
Fort Worth, Texas 76106 ("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
Existing building over 64" Right of Way
(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.
ROW Encroachment Agreement-Commercial OFFICIAL RECORD Page 1 of 11
PNn-ooisiCI, E SgCp IAp
_ Revised 10/2017
FT.WORTH, !TX
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.
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
ROW Encroachment Agreement-Commercial Page 2 of 1 l
PN17-00161 _ Revised 1012017
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 the
Improvements 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
ROW Encroachment Agreement-Commercial Page 3 of 11
PN 17-00161 _ Revised 10/2017
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.
LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS
ROW Encroachment Agreement-Commercial Page 4 of 11
PN17-00161 _ Revised 10/2017
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.
16.
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PN17-00161 _ Revised 10/2017
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,
and any 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.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
ROW Encroachment Agreement-Commercial Page 6 of 1 l
PN17-00161 _ Revised 10/2017
THIS AGREEMENT may be executed in multiple counterparts, each of which
shall be considered an original, but all of which shall constitute one instrument.
City: Licensee:
City of F rth
By: By: ,
41 1.14
Randle Harwood Name•
1
Director Title: 44
Planning and Development Department
Date: , 20 Date: 20 C
ATTEST: r Approved As To Form and Legality
�pRT sy i
City Secretary V .k Assistant City Attorney
Q 'ntract Compliance Manager
M&C:—
By signing I acknowledge that I am the person
1295:.
Responsible for the monitoring and Administration
Of this contract, including ensuring all performance
And reporting requirements.
Janie S. Morales OFFICIAL RECORD
Development Manager CITY SECRETARY
FT.WORTH,TX
ROW Encroachment Agreement-Commercial Page 7 of 11
Revised 10/2017
� .
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me o t_L_ 1201
by Randle Harwood, Director of the Planning and Development Department of the City
of Fort Worth, on behalf the City of Fort Wo
, 4NoaL
ublic ate o ex
�*,, �', JENNIFER LOUISE EZERNACK
;° Notary Public,State of Texas
Comm, Expires 03-01.2020
Notary ID 130561630
ROW Encroachment Agreement-Commercial Page 8 of 11
Revised 10/2017
STATE OF Gl
E
JENNY KIM TRIJONG
Notary Public,State of Texas
COUNTY O § . Comm.Expires 10-05-2020
, ��` Notary ID 124904363
-1
BEFORE ME, the undersigned authority, a Notary Public ' and fthe State of
Texas, on Ais day personally appeared c ,
It/A'S ' '� " (title), 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 ur oses and onsiderationerein xpressed, as the act and deed of
a , and in the capacity therein
stated.
------,---GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
20 .
ar
otary Public ' and for the
State of
2015 ROW Encroachment Agreement-Commercial Page q° O
Revised 10/2017
JENNY KI 1'RUONG
{R 4c+s ry Pubo ,State of Texas
STATE OF TEXAS § �; ., Com fres 10-05-2020
,,,°;,,�` No ry 1 24904363
COUNTY OF TARRANT §
This instrument was acknowledged before me o ld 201
by Randle Harwood, Director of the Planning a evelopme epa t ent of the City
of Fort Worth, on behalf the City of Fort Worth.
N Public at e
After Recording Return to:
City of Fort Worth
Planning and Development Department
CFA Office
200 Texas Street
Fort Worth TX, 76102
2015 ROW Encroachment Agreement-Commercial Page 9 of 12
Revised 10/2017
LEGAL DESCRIPTION OF THE PROPERTY
FOSTEPCO HEIGHTS ADDITION BLOCK 11 LOT 2
ROW Encroachment Agreement-Commercial Page 10 of 11
Revised 10/2017
EXHIBIT "A"
Location and Description of Encroachment and Improvements
ROW Encroachment Agreement-Commercial Page 11 of 11
Revised 10/2017
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4carzo CERTIFICATE OF LIABILITY INSURANCE 1/11/2018
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(les)must be endorsed. If SUBROGATION IS WAIVED,subject to
the terms and conditions of the policy,certain policies may require an endorsement A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).
PRODUCER CONTACT
NAME:
SUNNI BOENKER INS AGENCY LLC PHONE (682)334-0080
An:No EML (817)514-7600
5596 N Davis Blvd Ste 200 aboenker@boenkerinaurance.com ^^
ADDRESS. _ _.,...__
N Richland Hills, TX 76180 INSURER(s) AFFORDING COVERAGE NAICN
INsuRERA TRUCK INSURANCE EXCHANGE 21709
INSUREDr WKS ENTERPRISES INSURER B: _
DBA COLONIAL RESTAURANT INSURER C:
3820 N MAIN ST INSURER D!
FORT WORTH, TX 7 610 6 INSURER E!
817-624-1262 INSURER F:
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. 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 THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES,LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, _
NsO ADOLsWY R POLICY NUMBER M IDIS YY MM CJ(YYYY LIMITS
LTR TYPE OF INSURANCE
X COMMERCIAL GENERAL LIAsiLITY EACH OCCURRENCE f 2,GOO,000
CLAIMS-MADE X 'DAMAGETO-RENTED--
OCCUR PREMISE_ Ea oecurrernos) : 2501000
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X JECT LOC PRODUCTB;COMP/OP AGG _S 2,000,000
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AUTOMOBILE LIABILITY ( e,accldenll__ _ $ 2,000,000
ANYAUTO 12/26/2017 12/2G/203a BODILY INJURY(Per person) $
ALL OWNED SCHEDULED AUTOS BODILY INJURY(Per accident) S
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DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required)
CERTIFICATE HOLDER CANCELLATION
City of Fort Worth SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
�,aq;�l n�n,ry 11 CFA Office PN17-OO161 THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
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D.
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