HomeMy WebLinkAboutContract 39053�� ��A�T��AR�' � _
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RIGHT-OF-WAY ENCROACHMENT AGREEMENT
THE STATE OF TEXAS §
COUNTY OF TARRANT §
THIS AGREEMENT is made and entered into by and between the CITY OF
FORT WORTH, a municipal corporation of Tarrant County, Texas, acting herein by and
through its duly authorized City Manager or duly designated Assistant City Manager,
hereinafter referred to as the "C�", and CARLYLE/CYPRESS WEST 7T", LP, a
Delaware limited partnership, acting herein by and through its duly authorized general
partner, Carlyle/Cypress West 7th GP, LLC, hereinafter referred to as "Grantee", owner
of the property located in the City of Fort Worth, bounded by the following streets: West
7th Street, Foch Street, Crockett Street and University Drive ("Property").
WITNESSETH:
1.
For and in consideration of the payment by Grantee of the fee set out below and
the true and faithful performance of the mutual covenants herein contained, City hereby
grants to Grantee permission to install and allow to remain improvements) described
below ("Improvements") that encroach upon, use and/or occupy portions of the space
on and/or above certain streets, alleys, sidewalks, other public rights -of -way and/or
easements. The Improvements are described as follows: festival lights, guide wires,
electrical supply wiring and transformers. The Improvements generally will be installed
above Crockett Street between Norwood and Foch Streets and sidewalks adjacent
thereto (collectively "Street"). The Improvements may be installed, removed and
reinstalled from time to time, with no limit on the number of times during the term of this
Agreement. Grantee agrees to be responsible for maintaining the Improvements within
and above the Street. The location and description of the Improvements are more
particularly shown on in Exhibit "A", attached hereto and incorporated herein and made
a part hereof for all purposes.
2.
All construction, maintenance and operation in connection with the
Improvements shall be performed in strict compliance with this Agreement and the
Charter, Ordinances and Codes of City and in accordance with the directions of the
Director of Transportation and Public Works of City, or his duly authorized
representative. All plans and specifications thereof shall be subject to the prior written
approval of the Director of Transportation and Public Works, or his duly authorized
representative, but that approval shall not relieve Grantee of responsibility and liability
for concept, design and computation in preparation of the plans and specifications.y���
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FT. VI�ORTH, T�
u"-%�-09 N12:12
243776v1
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3.
Upon completion of construction and installation of the Improvements and
thereafter, there shall be no encroachments in, under, on or above the surface area of
the streets, alleys, sidewalks, easements and other public rights -of -way involved,
except as described herein and as shown on Exhibit "A".
C�
Grantee, at no expense to the City, shall make proper provisions for the
relocation and installation of any existing or future utilities affected by such
encroachment use and occupancy, including securing of approval and consent from
utility companies and the appropriate agencies of the State and its political
subdivisions. In the event that any installation, reinstallation, relocation or repair of any
existing or future utility or improvements owned by, constructed by or on behalf of the
public or at public expense is made more costly by virtue of the construction,
maintenance or existence of such encroachment and use, Grantee shall pay to the City
an additional amount equal to such additional cost as reasonably determined by the
Director of Transportation and Public Works of the City or his duly authorized
representative.
5.
City may enter and utilize the Street at any time for the purpose of installing or
maintaining the Street as necessary for the health, safety and welfare of the public and
for any other public purpose. In this regard, Grantee understands and agrees that City
shall bear no responsibility or liability for damage to or disruption of the Improvements
installed by Grantee or its successors, but City will make reasonable efforts to minimize
the damage.
6.
Any fees required under this Agreement shall be waived in accordance with the
Grantee's participation in the City of Fort Worth Neighborhood Empowerment Zone
(NEZ) Program.7.
The term of this Agreement shall be for thirty (30) years, commencing on the
date this Agreement is executed by City and shall thereafter be renewed automatically
in thirty (30) year increments so long as the Improvements are being used, or, if not in
use, are in the process of being reconstructed following a casualty or due to an
alteration of the Improvements.
Upon termination of this Agreement, Grantee shall, at the option of City and at
no expense to City, restore the public right-of-way and remove the Improvement
243776v1 Page 2
encroaching into the public right-of-way, to a condition acceptable to the Director of
Transportation and Public Works, or his duly authorized representative, and in
accordance with then existing City specifications. It is understood and agreed to by
Grantee that if this Agreement terminates and Grantee fails to remove the
Improvement, Owner hereby gives City permission to remove the Improvement and
any supporting structures and assess a lien on the Property for the costs expended by
the City to remove such Improvement
�a
It is further understood and agreed between the parties hereto that the Street is
held by City as trustee for the public; that City exercises such powers over the Street as
has been delegated to it by the Constitution of the State of Texas or by the Legislature;
and that City cannot contract away its duty and its legislative power to control the Street
for the use and benefit of the public. It is accordingly agreed that if the governing body
A City may at any time during the term hereof determine in its sole discretion to use or
cause or permit the Street to be used for any other public purpose including but not
being limited to underground, surface of overhead communication, drainage, sanitary
sewerage, transmission of natural or electricity, or any other public purpose, whether
presently contemplated or not that does not preclude the use of the Improvements on
the Property and/or activities related thereto, that the parties agree to negotiate in good
faith in order to accommodate the Improvements and the public purpose.
Grantee understands and agrees that the granting of permission to install and
maintain the Improvements is not meant to convey to Grantee any right to use or
occupy property in which a third party may have an interest, and Grantee agrees that it
will obtain any necessary permission before occupying the property.
11.
Grantee agrees to comply fully with all applicable federal, state and local laws,
statutesI ordinances, codes or regulations in connection with the construction,
operation and maintenance of the Improvements and uses.
12.
Grantee agrees to pay promptly when due all fees, taxes or rentals provided for
by this Agreement or by any federal, state or local statute, law or regulation.
243776v1 Page 3
13.
Grantee covenants and agrees that it shall operate hereunder as an
independent contractor as to all rights and privileges granted hereunder and not as an
officer, agent, servant or employee of City, and Grantee shall have exclusive control of
and the exclusive right to control the details of its operations, and all persons
performing same, and shall be solely responsible for the acts and omissions of its
officers, agents, servants, employees, contractors, subcontractors, licensees and
invitees. The doctrine of respondeat superior shall not apply as between City and
Grantee, its officers, agents, servants, employees, contractors and subcontractors, and
nothing herein shall be construed as creating a partnership or joint enterprise between
City and Grantee.
14.
GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS 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 ENCROACHMENTS
AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR
IN PART, BY THE NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, ELECTED
OFFICIALS OR INVITEES OF THE CITY; AND GRANTEE HEREBY ASSUMES ALL
LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. GRANTEE
SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL
INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY
ARISING OUT OF OR IN CONNECTION WITH THE ENCROACHMENTS AND ANY
AND ALL ACTS OR OMISSIONS OF GRANTEE, ITS OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES,
OR INVITEES.
15.
While this Agreement is in effect, Grantee agrees to furnish City with a
Certificate of Insurance, naming City as certificate holder, as proof that it has secured
and paid for a policy of general liability insurance in the amount of $1,000,000.00
covering all public risks related to the proposed use and occupancy of public property
as located and described in Exhibit "A" with the understanding of and agreement by
Grantee that the insurance amounts shall be reasonably revised upward at City's
option and that Grantee shall so revise the amounts immediately following notice to
Grantee of the requirement. The insurance policy shall provide that it cannot be
canceled or amended without at least ten (10) days' prior written notice to the Building
243776v1 Page 4
Official of the City of Fort Worth. A copy of the Certificate of Insurance is attached as
Exhibit "B." Grantee agrees to submit a similar Certificate of Insurance annually to City
on the anniversary date of the execution of this Agreement.
Grantee, its successors and assigns, agrees, binds and obligates itself, its
successors and assigns, to maintain and keep in force the public liability insurance at
all times during the term of this Agreement and until the removal of all Improvements
and the cleaning and restoration of the City streets. All insurance coverage required
herein shall include coverage of all Grantee's contractors.
16.
Grantee agrees to deposit with the City when this Agreement
sufficient sum of money to be used to pay necessary fees to record this
Agreement in its entirety in the deed records of Tarrant County, Tex
recorded, the original shall be returned to the City Secretary of the City
Texas.
17.
Intentionally Omitted
fiE:�
is executed a
Encroachment
�. After being
of Fort Worth,
Except in connection with the sale, lease or mortgaging of the Property, Grantee
covenants and agrees that it will not assign all or any of its rights, privileges or duties
under this contract without the prior written approval of the City Manager or designee.
Any attempted assignment without prior written approval will be void.
19.
THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION CONTAINED
IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
20.
This Agreement shall be binding upon the parties hereto, their successors and
assigns.
EXECUTED this
day of
2009.
243776v1
Page 5
CITY OF FORT WORTH
By:
Fernando Costa
Asst. City Manager
ATTEST:
�(A it4Ai V
City Secretary
Contract Authorizatiox
<9)Isl��
Date
GRANTEE
CARLYLE/CYPRESS WEST 7LP
a Delaware limited partnership
By: Carlyle/Cypress West t GP, LLC,
a Delaware limited liability company,
its general partner
By: Carlyle/Cypress Retail I, L.P.,
a Delaware limited partnership,
its Sole Member
By: Cypress Equities, LLC,
a Delaware I pited lia ility company,
its General rtner
By:
Nam in Parro
Title: Vke President/CFO
Approved As To Form and Legality
Assistant City Attorney
OFFICIAr_ t�ECOR®
CITY SECRETARY
T. WORTH, TX
243776v1
Page 6
THE 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 Fernando Costa, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same for the purposes and consideration therein expressed, as the act
and deed of the City of Fort Worth, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this � day of
2009.
8103,01
S3klIdX3 NOISSMN00 AW otary Public in and for the
SSIWW,�:;�,L
T130a Vona '-' a a State of Texas
THE STATE OF TEXAS § resS E�tu.�ics(�, � �e
COUNTY OF TAR § `rest�b
BEFORE ME, the undersigned authority, � Notary Public in and for the State of
Texas, on this day personally appeared Qr, J� �4r, ,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 Q,\4 L of Car y e yp ess est 7 GP ,
.LC, a Texas limited liability company, general partner of Carlyle/Cypress West 7tn
L.P., a Texas limited partnership, as the act and deed of said limited liability company
and said limited partnership.
GIVEf�J, UNDER MY HAND AND SEAL OF OFFICE this l! �` day of
iYN,c Y . 2009.
MERRILEE BU4GfONl �
waMy Commission Expires
May 31, 2010 Notary Nota Pubic in and for the
State of Texas
243776v1
Page 7
EXHIB4.T A —
Description of the Improvements
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Exhibit A
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STRING LIGHT ELEVATION
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Fart Worth, Texas
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Job it g6i 35.00
file Name: stringlight section_g01
Date: 2g09-0511
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EXHIBIT B
Certificate of Insurance
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Exhibit B
Page I of 2
E�rfieia( siCe of the City of r`ort. ovorth, i exas
DATE: 8/18/2009 REFERENCE NO.: **C-23718 LOG NAME: 06W7FESTIVAL
LIGHTS
CODE: C TYPE: CONSENT PUBLIC NO
HEARING.
SUBJECT: Authorize the Execution of an Encroachment Agreement with Carlyle/Cypress West 7th,
LP, Authorizing Use of the Crockett Street Right -of -Way for the Installation of Festival
String Lights, Guy Wires, Electrical Supply and Transformers
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a standard
encroachment agreement with Carlyle/Cypress West 7th, LP, for the installation of festival string
lights and associated electrical and structural components above the Crockett Street right-of-way
between Norwood Street and Foch Street.
DISCUSSION:
Carlyle/Cypress West 7th, LP, has requested use of the public right-of-way for the installation of
festival string lights and associated electrical and structural components above the Crockett Street
right-of-way. These lights will be installed to cross back -and -forth above Crockett Street
approximately nineteen feet above the street surface.
The Encroachment Committee, consisting of staff from Transportation and Public Works,. Water and
Planning and Development, has reviewed and approved the light bulb type, electrical supply,
attachment systems and the approximate locations where the festival lights will cross above Crockett
Street.
The fee for the privilege granted by this Agreement is waived by the project's accepted NEZ status.
The term of the Agreement will be 30 years and shall be automatically renewed in 30 year increments
so long as the improvements are being used.
The subject property is in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on
City funds.
TO Fund/Account/Centers
Submitted for City Manager's Office by_
Originating Department Head:
FROM Fund/Account/Centers
Fernando Costa (6122)
Susan Alanis (8180)
http://apps. cfwnet.org/council�acket/mc_review.asp?ID=12007&councildate=8/ 18/2009 9/ 1 /2009
M&C Review
Page 2 of 2
Additional Information Contact:
ATTACHMENTS
06W7FSTIVAL LIGHTS.MAP.pdf
bulb_& strand specs._pdf
W7_Crocket Festival_lights.pdf
W7LIGHTS.pdf
David Schroeder (2239)
http://apps.cfwnet.org/council�acket/mc review.asp?ID=12007&councildate=8/18/2009
9/ 1 /2009