HomeMy WebLinkAboutContract 54301 Aug 18,2020 CSC No.54301
1:30 pm
ROW ENCROACHMENT LICENSE AGREEMENT
THIS AGREEMENT is made and entered into effective as of August 14,2020 (the
"Effective Date"), by and between THE CITY OF FORT WORTH ("City") and
American Airlines, Inc. ("Licensee"), lessee of the real property located at 4501
Highway 360,Fort Worth, Texas 76155 ("Property").
RECITALS
WHEREAS, Licensee entered into a lease agreement (the "Lease") with
Dallas/Fort Worth International Airport Board (the "Airport Board"), the owner of the
Property, and Licensee must encroach on and under City's right-of-way in order to
construct landscape and drainage improvements on the Property;
WHEREAS, Licensee's encroachments include a 30" storm sewer, 2-18" storm
sewers, a French drain, landscape/drainage swales, and private sidewalks. (FAA Blvd. is
referred to as"ROW");
WHEREAS, Licensee has authority under the Lease to enter into this Agreement;
WHEREAS, the City and Licensee are entering into this Agreement to allow
Licensee to construct, place and maintain certain improvements which will encroach into
the ROW as shown on the map attached to this Agreement as Exhibit "A" and
incorporated herein for all purposes; 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 the 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 and occupy a portion of the City's
ROW for the purposes of installing, maintaining, repairing, and replacing a 30" storm
sewer, 2-18" storm sewers, a French drain, landscape/drainage swales, and private
sidewalks (collectively the "Encroachment") as described in and at the location within
the ROW shown on Exhibit"A",but only to the extent shown thereon. Upon completion
of the Encroachment, Licensee agrees to be responsible for maintaining the
Encroachment within the ROW. Licensee shall not expand or otherwise cause the
Encroachment to further infringe in or on City's ROW beyond what is specifically
described in Exhibit"A"attached hereto.
ROW Encroachment Agreement-Commercial Page 1 OFFICIAL RECORD
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CITY SECRETARY Rev.07/2017
FT.WORTH, TX
2.
All construction, maintenance and operation in connection with such
Encroachment, 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 Director of the Transportation and Public Works or the Director of the
City's Water Department, 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 Encroachment. Licensee shall not
commence construction of the Encroachment 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 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 Encroachment 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
Encroachment 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.
4.
Licensee agrees to pay to City at the time this Agreement is requested an
application fee of$500.00 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$1.44 per square/linear foot of the encroachment area
upon execution of this Agreement and annually thereafter.
ROW Encroachment Agreement-Commercial Page 2
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25934548v.4
5.
The term of this Agreement shall be for the duration of the Lease, commencing on
the Effective Date. 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.
6.
It is further understood and agreed between the parties hereto that the ROW 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 ROW 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 ROW for the use and
benefit of the public.
7.
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
ENCROACHMENT 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
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 WITH RESPECT THERETO. THE FOREGOING
INDEMNITY SHALL NOT APPLY WITH RESPECT TO MATTERS ARISING
OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY THE
ROW Encroachment Agreement-Commercial Page 3
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25934548v.4
CITY'S OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS,LICENSEES,ELECTED OFFICIALS OR INVITEES.
S.
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 located and described 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
reasonably 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 30 days prior written notice to
the Building Official of the City of Fort Worth. Within 30 days of execution of this
Agreement, Licensee agrees to submit a copy of such Certificate of Insurance. Licensee
agrees to submit a similar Certificate of Insurance annually to City on the anniversary of
the Effective Date.
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 the Encroachment and the cleaning and restoration of
the ROW. All insurance coverage required herein shall include coverage of all
Licensees' contractors and subcontractors.
9.
At Licensee's expense, Licensee shall file this agreement in the Real Property
Records of Tarrant County, Texas within fifteen (15) days of its full execution. After
being recorded, the original shall be returned to the City Secretary of the City of Fort
Worth.
10.
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 Encroachment and uses.
11.
ROW Encroachment Agreement-Commercial Page 4
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25934548v.4
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.
12.
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.
13.
Licensee agrees and acknowledges that this Agreement is solely for the purpose
of permitting Licensee to construct, maintain and locate the Encroachment within the
ROW and is not a conveyance of any right, title or interest in or to the ROW nor is it
meant to convey any right to use or occupy property in which a third parry may have an
interest. Licensee agrees that it will obtain all necessary permissions before occupying
such property beyond what is contemplated in this agreement.
14.
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.
15.
The parties agree that the duties and obligation contained in Section 3 shall
survive the termination of this Agreement.
16.
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 City, and any
attempted assignment without such written approval shall be void. The foregoing
prohibition shall not prohibit Licensee from collaterally assigning this Agreement in
connection with any financing, upon receiving written approval as outlined in the
foregoing sentence. 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
ROW Encroachment Agreement-Commercial Page 5
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25934548v.4
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.
17.
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.
18.
This Agreement shall be binding upon the parties hereto, their successors and
assigns.
THIS AGREEMENT may be executed in multiple counterparts, each of which
shall be considered an original, but all of which shall constitute one instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE(S)FOLLOW]
ROW Encroachment Agreement-Commercial Page 6
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25934548v.4
AGREED:
LICENSEE:AMERICAN AIRLINES, INC. CITY: CITY OF FORT WORTH
rrell(A_
Kirk Hotelling DJ Harrell
Vice President—Airpo Affairs and Facilities Development Services Director
APPROVED AS TO FORM AND LEGALITY
Matt Murray(Aug 14,242 O9:44 CDT)
Matt Murray, Assistant City Attorney
FWBC Sec. 3210 o4400nn�Il
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ATTEST:
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ono o=d
�,�,�y d�aQ 4p nEXA5o4A
By: ' 0
Mary Kayser
City Secretary
No M&C Required
Form 1295 Certification No. N/A
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.
rie Lewis(Aug 13,2020 17:51 CDT)
Name-Cac4aj6 Lew.S
Title:
ROW Encroachment Agreement-Commercial Page 7 OFFICIAL RECORD
25934548v.4
CITY SECRETARY Rev.07/2017
FT.WORTH, TX
ACKNOWLEDGEMENT
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 Kirk Hotelling, Vice President — Airport
Affairs and Facilities, known to me to be the same person whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act of
American Airlines, Inc. and that he/she executed the same as the act of said American
Airlines, Inc. for the purposes and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this — _Aay of
1LLt 2t
r
MARIANA RODRIGUEZ _ V
"'Notary Public,State of Te
�:.' ;�r �lr)-art -Dr tat of Texas
v� Comm, Expires 05.06-20
��i 0;,;;��� Notary ID 132002125
rE T
I
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 DJ Harrell, Development Services
Director of the City of Fort Worth, known to me to be the same person whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same was the
act of the City of Fort Worth and that he/she executed the same as the act of the City of
Fort Worth for the purposes and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 14th day of
August 202
�. LAURIE Digitally signed by
LAURIE PEQUENO LEWIS
aYPa NO LEWIS pEQUENO LEWI ATE S Date:2020.08.1409:38:40
*O
STATE y TEXAS
AS -05r00r
* Notary I.D.132278952
OF My Comm.Exp.D-10,2023 Notary Public in and for the State of Texas
After Recording Return to:
City of Fort Worth City Attorney's Office
200 Texas Street
Fort Worth TX, 76102
ROW Encroachment Agreement-Commercial Page 8 OFFICIAL RECORD
25934548v.4
CITY SECRETARY Rev. 07/2017
FT.WORTH, TX
EXHIBIT "A"
Map of Encroachment
Attached
ROW Encroachment Agreement-Commercial Page 9
Rev.07/2017
25934548v.4
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