HomeMy WebLinkAboutContract 51486CITY SECRETARY
CONTRACT NO. lU
RIGHT OF WAY
ENCROACHMENT AGREEMENT
C G\� (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 EME HOLDINGS
INC., a(n) CORPORATION "Licensee", acting herein by and through its duly authorized
OWNER, the owner of the real property located at 1100 FOCH ST, 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, attached as "Exhibit C", and incorporated herein for all
purposes; 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
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 expanding existing patio to
include paving, trellis, and low wall/fence (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.
OFFICIAL RECORD
CITY SECRETARY
ROW Encroachment Agreement -Commercial IRM?001'�y
9
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
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
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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.
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
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
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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
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 HIND OR CHARACTER,
ARISING OUT OF OR IN CONNECTION WITH, THE CONSTRUCTION,
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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 All.
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.
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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,
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.
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[SIGNATURES APPEAR ON FOLLOWING PAGE]
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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:
Cita
By:
Ran
Director
Planning and Development Department
Date: , 201t_
:'�3
Licensee:
Entity: EME DIN INC
Signed.
Nam . EMIL BRAGDON
Title: OWNER
Date: lq/ZJ, 20 (,e
Approved Form and Legality
� A U
Assis ant City Attorney
M&C:—VL— Contract Compliance Manager
1295: _,A._ r By signing I acknowledge that I am the person
responsible for the monitoring and Administration
of this contract, including ensuring all performance
an port' g requi n"J
Janie S. orales
Development Manager
ROW Encroachment Agreement -Commercial
OFFICIAL RECORD
CITY SECRETARY
FT. VWR-fWTX
evised 10/10/2018
STATE OF TEXAS §
COUNTY OF TARRANT
This instrument was acknowledged before me on Cf�] ,S i 2017
by Randle Harwood, Director of the Planning and Development Department of the City
of Fort Worth, on behalf the City of Fort
JENNIFER LOUISE EZERNACK
Notary Public, State of Texas
Comm, Expires 03-01.2020
Notary ID 130561630
ROW Encroachment Agreement -Commercial
OFFICIAL. RECORD
CITY S�CRI9 0j
W
age
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 EMIL BRAGDON, OWNER (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 purposes and consideration
therein expressed, as the act and deed of EME HOLDINGS INC., a CORPORATION,
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 0Cf,
�o
CHRIISTY L REED
Notary Public
*®* STATE OF TEXAS
My Comm. Exp. 09-12-21
Notary ID # 1179952-9
After Recording Return to:
City of Fort Worth
Planning and Development Department
CFA Office
200 Texas Street
Fort Worth TX, 76102
ROW Encroachment Agreement -Commercial
OPAJ4�Qce
Notary Public in and for the
State of ktYa
0FR04'AL RECORD
CITY SECRETARY
FT Page 10 of IT!
Revised l Oi 10!2018
"EXHIBIT A"
Location and Description of Encroachment and Improvements
ROW Encroachment Agreement -Commercial Page 11 of 13
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EXHIBIT A
RIGHT-OF-WAY ENCROACHMENT EXHIBIT
FOCH STREET(60 FOOT R.O.W.)
VAN ZANDT'S PARK ADDITION
J.M.C. LYNCH SURVEY, ABSTRACT NO. 955
CITY OF FORT WORTH, DALLAS COUIINITY, TEXAS
BLIEDSOE STREET
(60' R.O.W.)
S 89°4942" E 200.00' P.O.C.
------- ---, -- --; SO°10'18"W
EME HOLDINGS, LLC ; 5.98'
INSTRUMENT NO. 216214644 ! P.O.B.
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O.P.R.T.C.Tn
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0.597 ACRES
LOT 7 LOT 8 LOT 9 j LOT 10
BLOCK 17 BLOCK 17 BLOCK 17 BLOCK 17
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VAN ZANDT'S PARK ADDITION i
VOLUME 204-A, PAGE 81 RIGHT-OF-WAY
P.R.T.C.T. I ENCROACHMENT
(862 SQ. FT. OR 0.02 AC.)
I
CONSENT AGREEMENT FOR 1 O'ENCROACHMENT
— — — — — - — YYITH CITY i F ?ORT WORTH
10455-1518
N 89°49'42" W 200.00'
16' ALLEY
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NOTE:
1. IRF - IRON ROD FOUND
2. POC - POINT OF COMMENCING <--' ' 20' 40' 80'
3. POB - POINT OF BEGINNING
4. C.M. = CONTROLLING MONUMENT / SCALE: 1 = 40'
PAGE 2OF2
5/8" IRF
N 89° 7'34" E
—7.05'
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5. O.P.R.T.C.T. - OFFICIAL PUBLIC RECORDS, TARRANT COUNTY, TEXAS
6. P.R.T.C.T. - PLAT RECORDS, TARRANT COUNTY, TEXAS
7. D.R.T.C.T. - DEED RECORDS, TARRANT COUNTY, TEXAS
Basis of Bearing - The Basis of Bearing of this survey is the Texas State Plane Coordinate System Grid, North Central Zone (4202),
North American Datum 1983 (2002).
S URVEY GRO UP JOB NO.: 18-085
SURVEYING * CONSULTING *MANAGEMENT
—DATE: JULY 25, 2018
TBPS No. 101733-00
4;1
SCALE: 1" = 40'
1475 HERITAGE PARKWAY, SUITE 217 (817) 354-1445
MANSFIELD, TEXAS 76137 surveygroup@att.net DRAWN BY: RP
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"EXHIBIT B"
Certificate of Insurance
ROW Encroachment Agreement -Commercial Page 12 of 13
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"EXHIBIT C"
Metes and Bounds of the Property
ROW Encroachment Agreement -Commercial Page 13 of 13
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EXHIBIT C
RIGHT-OF-WAY ENCROACHMENT EXHIBIT PAGE 1QF 2
FOCH STREET(60 FOOT R.O.W.)
VAN ZANDT'S PARK ADDITION
J.M.C. LYNCH SURVEY, ABSTRACT NO. 955
CITY OF FORT WORTH, DALLAS COUNTY, TEXAS
STATE OF TEXAS
COUNTY OF TARRANT
Being a 862 square foot or 0.02 acre tract of land located in the J.M.C. Lynch Survey, Abstract No. 955, City of Fort Worth,
Tarrant County, Texas, being a portion of the Foch Street right-of-way (60 foot R.O.W.)(Formerly know as Franklin Street), as
recorded in Volume 204-A, Page 81, Plat Records, Tarrant County, Texas, and being more particularly described by metes and
bounds as follows:
COMMENCING at a 5/8 inch iron rod found at the southwest intersection of said Foch Street and Bledsoe Street (60 foot
R.O.W.), point being the northeast corner of a 0.597 acretract of land as described in a deed to EME Holdings, LLC as recorded
in Instrument No. 216214644, Official Public Records, Tarrant County, Texas, the same tract of land known as Lots 7, 8, 9 and
10, Block 17, Van Zandt's Park Addition, an addition to the City of Fort Worth, according to the plat thereof recorded in Volume
204-A, Page 81 of the said plat records;
THENCE South 00 degrees 10 minutes 18 seconds West, along the east line of the said .597 acre tract and the west line of the
said Foch Street right-of-way, a distance of 5.98 feet to the POINT OF BEGINNING for the herein described tract;
THENCE North 89 degrees 57 minutes 34 seconds East, through the said Foch Street right-of-way, a distance of 7.05 feet to a
point;
THENCE South 00 degrees 10 minutes 18 seconds West, through the said Foch Street right-of-way, a distance of 122.24 feet to
a point;
THENCE South 89 degrees 57 minutes 34 seconds West, through the said Foch Street right-of-way, a distance of 7.05 feet to a
point in the west line of the said 0.597 acre tract;
THENCE North 00 degrees 10 minutes 18 seconds East, along the west line of said Foch Street and the east line of the said
0.597 acre tract, a distance of 122,24 feet to the POINT OF BEGINNING and containing 862 square feet or 0.02 acres of
computed land more or less.
Basis of Bearing - The Basis of Bearing of this survey is the Texas State Plane Coordinate System Grid, North Central Zone
(4202), North American Datum 1983 (2002).
The plat hereon is a true, correct and accurate representation of the property as determined by an on the ground survey,
subject to any and all easements, reservations and restrictions that may be of record, the lines and dimensions of said
property being Indicated by the plat, the size, location and type of buildings and Improvements are as shown, all
improvements being within the boundaries of the property set back from property lines the distance indicated, and the
distance from the nearest intersection as indicated is as shown on said plat. There are no visible encroachments,
conflicts, or protrusions except as shown.
21
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Jr_.1
Registered Professional Land Surveyor No. 3047
S LTR VEY GR4 UP JOB NO.: 18-085
SURVEYING * CONSULTING * MANAGEMENT
DATE: JULY 25, 2018
TBPS No. 101733-00
SCALE: 1. _ 40'1475 HERITAGE PARKWAY, SUITE 217 (817) 354-1445
MANSFIELD, TEXAS 76137 surveygroup@att.net DRAWN BY: RP
William P. Price i