HomeMy WebLinkAboutContract 53102 31Wk
PUBLIC RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT
rIN SECFa �` 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 by and through its duly authorized City Manager, Assistant City Manager, or
Planning and Development Department Director, and Fort Worth Waterside Lodging
Associates, LLC, a Wisconsin limited liability company ("Licensee"), owner of the
real property located at 5825 Arborlawn Drive, Fort Worth, Texas 76109 ("Property"),
acting by and through its duly authorized Manager.
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," which is incorporated
herein for all purposes; and
WHEREAS, Licensee desires to construct/place and maintain certain
improvements which will encroach in, on, above, or below the Public Right-of-Way; and
WHEREAS, to accommodate the needs of the Licensee, the City will allow the
encroachment under the terms and conditions as set forth in this Agreement.
NOW,THEREFORE, the City and Licensee agree as follows:
AGREEMENT
1.
The 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 in, on, above, or below and
occupy a portion of the City's Public Right-of-Way as described in and at the location
shown on Exhibit A, but only to the extent shown thereon, for the purpose of placing
pavement on right-of-way (the "Encroachment"). Upon completion of the
Encroachment, Licensee agrees to be responsible for maintaining the Encroachment
within the Public Right-of-Way. Licensee shall not expand or otherwise cause the
Encroachment to further infringe in or on the Public Right-of--WayEFT.
i
specifically described in the exhibit(s) attached hereto. L RECORD
CRET�4.�'`+�°
RTH,`"a d`�
ROW Encroachment Agreement-Commercial
Revised 12/2018
2.
All construction, maintenance, or operation in connection with such
Encroachment, use, or occupancy shall comply and be performed in strict compliance
with this Agreement and with the Charter, Ordinances, and Codes of the City, and in
accordance with the directions of the Director of the Transportation and Public Works
Department or the Director of the Water Department, or their duly authorized
representative. Prior to the construction of the Encroachment, Licensee shall submit all
plans and specifications to the applicable Director or duly authorized representative.
Licensee shall not commence construction of the Encroachment until such approval shall
be indicated in writing by the applicable Director or authorized representative. However,
such approval shall not relieve Licensee of responsibility and liability for concept, design,
and computation in the preparation of such plans and specifications.
3.
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 the approval and consent of
the appropriate utility companies and 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 or 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 Encroachment and use, Licensee shall pay to City an
additional amount equal to such additional cost as determined by the Director of
Transportation and Public Works or the Director of the Water Department, or their duly
authorized representative.
4.
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. The City shall bear no responsibility or liability for any
damage or disruption or other adverse consequences resulting from the Encroachment
installed by Licensee, but City will make reasonable efforts to minimize such damage.
5.
Upon termination of this Agreement, Licensee shall, at the option of and at no
expense to the City, remove the Encroachment and restore the Public Right-of-Way to a
condition acceptable to the Director of Transportation and Public Works or the Director
of the Water Department, or their duly authorized representative, in accordance with
then-existing City specifications. It is understood and agreed to by Licensee that if this
Agreement terminates and Licensee fails to remove the Encroachment as directed and
restore the Public Right-of-Way, Licensee hereby gives City permission to remove the
ROW Encroachment Agreement-Commercial Page 2 of 12
Revised 12/2018
Encroachment and any supporting structures and assess a lien on the Property for the
costs expended by the City in taking such actions.
6.
In order to defray all costs of inspection and supervision which the 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 to City at the time this Agreement is requested an application fee in the sum
of Five Hundred Dollars ($500.00). Additionally, Licensee agrees to pay upon
execution of this Agreement and annually thereafter a fee in the amount of $1.44 per
square/linear foot of the encroachment area, or $201.60 based on the area of the
Encroachment as of the date of execution of this Agreement, such amount to be revised
accordingly upon any modification to the area of the Encroachment during the term of
this Agreement.
7.
The term of this Agreement shall be for thirty (30) years, commencing on the
date this Agreement is executed by City. However, this Agreement may be terminated
upon Licensee's noncompliance with any of the terms of this Agreement. City shall
notify Licensee in writing of any noncompliance and if not cured within thirty (30) days,
this Agreement shall be deemed terminated, unless such noncompliance is not susceptible
to cure within thirty (30) days, in which case this Agreement shall be deemed terminated
in the event that Licensee fails to commence and take such reasonable steps as are
necessary to remedy the noncompliance within thirty (30) days after written notice
specifying the same, or having so commenced, thereafter fails to proceed diligently and
with continuity to remedy same.
8.
It is further understood and agreed between the parties hereto that the Public
Right-of-Way to be used and encroached upon 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 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, that the parties agree to negotiate in
good faith in order to accommodate the Encroachment and the public purpose.
ROW Encroachment Agreement-Commercial Page 3 of 12
Revised 12/2019
9.
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,
WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION
WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION,
MAINTENANCE, OCCUPANCY, USE, EXISTENCE, OR LOCATION OF THE
ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT
CAUSED, IN WHOLE OR IN PART, BY THE 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
ENCROACHMENTS AND ANY AND ALL ACTS OR OMISSIONS OF
LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES.
10.
While this Agreement is in effect, Licensee agrees to furnish City with a
Certificate of Insurance naming City as certificate holder as proof that is 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
$190009000
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
immediately following notice to Licensee of such requirement. Such insurance policy
shall not be canceled or amended without at least thirty (30) days prior written notice to
the Building Official of the City. 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 the City on the anniversary date of the
execution of this Agreement.
Licensee agrees, binds, and obligates itself and 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 the Encroachment and the cleaning and
ROW Encroachment Agreement-Commercial Page 4 of 12
Revised 12/2018
restoration of the Public Right-of-Way. All insurance coverage required herein shall
include coverage of all Licensee's contractors and subcontractors.
11.
Licensee agrees to deposit with the City when this Agreement is executed a
sufficient sum of money to be used to pay necessary fees to record this 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.
12.
Licensee agrees to comply fully with all applicable federal, state, and local laws,
statutes, ordinances, codes, and regulations in connection with the construction,
operation, and maintenance of the Encroachment and uses.
13.
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.
14.
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.
15.
Licensee agrees and acknowledges that this Agreement is solely for the purpose
of permitting Licensee to construct, maintain, and locate the Encroachment over or within
the Public Right-of-Way and is not a conveyance of any right,title, or interest in or to the
Public Right-of-Way, nor is it meant to convey any right to use or occupy property in
which a third-party may have an interest. Licensee agrees that it will obtain all necessary
permissions before occupying such property.
ROW Encroachment Agreement-Commercial Page 5 of 12
Revised 12/2018
16.
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 attorneys' fees.
17.
The parties agree that the duties and obligations contained in Section 5 shall
survive the termination of this Agreement.
18.
Licensee covenants and agrees that it will not assign all or any of its rights,
privileges, or duties under this Agreement without the 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 sixty (60) days of such foreclosure or
assignment and assumes all of Licensee's 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.
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.
20.
This Agreement shall be binding upon the parties hereto and their successors and
assigns.
21.
This Agreement may be executed in multiple counterparts, each of which shall be
considered an original,but all of which shall constitute one instrument
[SIGNATURES APPEAR ON FOLLOWING PAGE]
ROW Encroachment Agreement-Commercial Page 6 of 12
Revised 12/2018
City: Licensee:
CITY OF FORT WORTH FORT WORTH WATERSIDE
LODGING ASSOCIATES,LLC
Raymond Management Company,Inc.
its Manager
BY: BY: P,
Randle Harwoo , Director ame: Judith P. Raymond
Planning& De v lop ent Title: President
Aff
Date: [ Date: IIA-h 1
�s
Q� ��T
*k
ATTEST: approved As To Form and Legality
!� 5
Ev
XR
City SecretarPu 70 PAP A�Y
N D M&C FR EQ U 12 ED Assistant City Attorney
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
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
ROW Encroachment Agreement-Commercial Page 7 of 12
Revised 12/2018
1 '
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 Randle Harwood, known to me to be the person
whose name is subscribed to the foregoing instrument, and acknowledged to me that he
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 HAND AND SEAL OF OFFICE this day of
20 l �.
1AV)I 1 !14��IwAkey_Lj
`� -/� JENNIFER LOUISE EZERNACK
o y Public and fo t State of Texas ,�`� �e-;Notary Public,State of Texas
:°'
Comm.Expires 03-01-2020
--�� OFt`� �;
,��i���. Notary ID 130561630
After recording return to:
Planning& Development
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
0FRUAL RECORD
Ufy- SECRETARY
IFT WORTH, TX
ROW Encroachment Agreement-Commercial Page 8 of 12
Revised 12/2018
STATE OF WISCONSIN §
COUNTY OF DANE §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
W 1 , on this day personally appeared Judith P. Raymond, President of
Raymond Management Company, Inc., known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he or she executed
the same for the purposes and consideration therein expressed, as the act and deed of
Fort Worth Waterside Lodging Associates, LLC, a limited liability company, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of Nov. ,
20 Iq
LISA S=Public
NotNotary Public in and for the State
State of Wisconsin
.QxP; 09-2.0 -2021
ROW Encroachment Agreement-Commercial Page 9 of 12
Revised 12/2018
EXHIBIT A
Map of Easement and Encroachment
ROW Encroachment Agreement-Commercial Page 10 of 12
Revised 12/2018
Exhibit A
NORTH
LOT 1, BLOCK B
WATERSIDE ADDITION
I zo' ao' \� \ \ (INST. NO. D214269853)
GRAPHIC SCALE IN FEET \
ARBORLAWN DRIVE
�\ RIGHT-OF-WAY (A VARIABLE WIDTH RIGHT-OF-WAY)
ENCROACHMENT P.O.C.
0.0032 ACRES
MNF
140 SQ. FT. (C.M.) P.O.B.
LOT 1, BLOCK F ��22\4 S10�31.11 \
WATERSIDE ADDITION \
(INST. NO. D214269853) L3 \\
\
PART OF FW WATERSIDE �2 y
COMMERCIAL LLC
(INST. NO. D214224892) IRFC
LINE TABLE (C.M.)
NO. BEARING LENGTH
LEGEND L1 S10"34'11"E 8.63'
P.O.C.=POINT OF COMMENCING L2 N70°3411"W 37.41'
P.O.B.=POINT OF BEGINNING
IRFC=5/8"IRON ROD WITH"KHA'CAP FOUND L3 S83"18'01"E 33.93'
C.M.=CONTROLLING MONUMENT
MNF=MAG NAIL FOUND
NOTES
Bearing system based on the Texas Coordinate System of 1983(2011 adjustment), North Central Zone(4202).
A metes and bounds description of even survey date herewith accompanies this survey plat.
The undersigned, Registered Professional Land Surveyor, hereby certifies that this survey plat accurately sets out the
metes and bounds of the encroachment tract.
RIGHT-OF-WAY ENCROACHMENT
PART OF ARBORLAWN DRIVE
� ��0 EVAN H. BURKE SURVEY,
"'9 ABST. NO. 160
MICHAEL C. BILLINGSLEY :`
REGISTERED PROFESSIONAL CITY OF FORT WORTH, TARRANT
MICHAEL CLEO BILLINGSLEY COUNTY, TEXAS
LAND SURVEYOR NO. 6558 ................................
801 CHERRY STREET, 0 6558
UNIT 11 SUITE 1300 ESS�,) o� Kirnlev* Horn
FORT WORTH,TEXAS 76102 'v 0 " �y 801 Cherry Street,Unit 11,#1300 1 TeI.No.(817)335-6511
PH. 817-335-6511 S U R Fort Worth,Texas 76102 FIRM#10194040 www.kimley-hum.com
michael.billingsley@kimley-horn.com Scale I Drawnbv I Checkedbv Date Pmiect No. I Sheet No.
1'=40' CDP MCI3 JULY,2019 061171093 2 OF 2
PADILLA,CAELAN 7/29/2019 10:59 AM K:1FTW SURVEY1061171093-WATERSIDE 401DWG1061171093 WATERSIDE 40 ENCROACHMENT.DWG
EXHIBIT B
Certificate of Insurance
ROW Encroachment Agreement-Commercial Page 11 of 12
Revised 12/2018
EXHIBIT C
Metes and Bounds Legal Description of the Property
ROW Encroachment Agreement-Commercial Page 12 of 12
Revised 12/2018
EXHIBIT C
Legal Description
TRACT 1:(Fee Simple)
Lot 1,Block F of WATERSIDE ADDITION, according to the Plat thereof recorded in cc#D214269853,
Real Property Records,Tarrant County,Texas.
TRACT 2:(Easement Estate)
Non-exclusive easement rights created by that certain Reciprocal Easement Agreement, by and between
FW Waterside Commercial, LLC and CH Realty VI-TDC MF Fort Worth Waterside LP, filed
10/14/2014, recorded in cc# D214224964, Real Property Records, Tarrant County, Texas. First
Amendment filed 06/07/2016, recorded in cc# D216121264, Real Property Records, Tarrant County,
Texas.
Exhibit"A"
Exhibit C
LEGAL DESCRIPTION
RIGHT-OF-WAY ENCROACHMENT
BEING a 140 square foot (0.0032 acre)tract of land, situated in the Evan H. Burke Survey, Abstract No. 160, City of
Fort Worth, Tarrant County; said tract being part of Arborlawn Drive (a variable width right-of-way) dedicated by the
plat of Waterside Addition, an addition to the City of Fort Worth according to the plat recorded in Instrument No.
D214269853 of the Official Public Records of Tarrant County, Texas; said tract being more particularly described as
follows;
COMMENCING at a mag nail found in the south right-of-way line of Arborlawn Drive (a variable width
right-of-way); said point also being in the north line of Lot 1, Block F of said Waterside Addition;
THENCE South 10*34'11" East, along the said south line of Arborlawn Drive, a distance of 14.58 feet to the
POINT OF BEGINNING;
THENCE South 10*34'11" East, continuing along the said south line of Arborlawn Drive, a distance of 8.63 feet to a
5/8" iron rod with "KHA"cap found for corner;
THENCE North 70'34'11" West, continuing along the said south line of Arborlawn Drive, a distance of 37.41 feet to a
point for corner;
THENCE South 83°18'01" East, departing the said south line of Arborlawn Drive, a distance of 33.93 feet to the
POINT OF BEGINNING and containing 140 square feet or 0.0032 acres of land, more or less.
NOTES
Bearing system based on the Texas Coordinate System of 1983(2011 adjustment), North Central Zone (4202).
A survey plat of even survey date herewith accompanies this metes& bounds description.
The undersigned, Registered Professional Land Surveyor, hereby certifies that the foregoing description accurately
sets out the metes and bounds of the encroachment tract.
RIGHT-OF-WAY ENCROACHMENT
PART OF ARBORLAWN DRIVE
P-�E.�F, ray EVAN H. BURKE SURVEY,
w
�G1ST0 ABST. NO. 160
'MICHAEL C. BILLINGSLEY * :'�
• CITY OF FORT WORTH, TARRANT
REGISTERED PROFESSIONAL "............••••••"••"......•
LAND SURVEYOR N0. 6558 MICHAEL CLEO BILLINGSLEY COUNTY, TEXAS
................................
CHERRY STREET, :•,0 6558 UN Kirnle >>> Horn
FORT WORTH, TEXAS 76102
UNIT 11 SUITE 1300 �o �Q
q FESS��.• o
y Q•••••••• �y BOt Cherty Street,Unit 11,#1300 Tel.No.(817)3356511
PH. 817-335-6511 S U R V Fort Worth,Texas 76102 FIRM#10194040 www.kimley-hom.com
S_le Drawn by I Checked by I D_te Proiect No. Sheet No.
michael.billingsley@kimley-horn.com N/A CDP MCB JULY,2019 061171093 1OF2
PADILLA,CAEIAN 7/29/2019 12:38 PM K:1FTW SURVEYl061171093-WATERSIDE 40%DWG1061 1 71 09 3 WATERSIDE 40 ENCROACHMENT.DWG