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HomeMy WebLinkAboutContract 45000 (2)RIGHT OF WAY ENCROACHMENT AGREEMENT (COMMERCIAL) 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 its duly authorized Assistant City Manager or Planning and Development Department Director, hereinafter referred to as the "City", and Race Street Lofts, Ltd„ acting herein by and through its duly authorized representative, hereinafter referred to as "Licensee", Owner of the improvements commonly known as the Race Street Lofts located at 2817 Race Street, Fort Worth TX 76111 ("Property"). AGREEMENT 1. For and in consideration of the payment by Licensee of the fee set out below and the true and faithful performance of the mutual covenants herein contained, City hereby grants to Licensee permission to construct/ install and/or allow to remain, improvement(s) ("Improvements") that encroaches upon, uses and/or occupies portions of the space under, on and/or above the streets, alleys, sidewalks and other public rights - of -way, such Improvement(s) are described as follows: Concrete flume, stairs and hand rails, sidewalks, and driveway into the public right of way of McLemore Street The location and description of said Improvements and the encroachment is more particularly described in Exhibit "A", attached hereto, incorporated herein and made a part hereof for all purposes. RECEIVED OCT iB 2013 2012 ROW Encroachment Agreement -Commercial Page 1 of 10 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 Charter, Ordinances and Codes of the City and in accordance with the directions of the Director of Transportation and Public Works of City, or his or her 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 or her duly authorized representative, but such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in preparation of such plans and specifications. 3. Upon completion of construction and installation of said Improvements and thereafter, there shall be no encroachments in, under, on or above the surface area of the streets, alleys, sidewalks and other public rights -of -way involved, except as described herein and shown on the hereinabove referred to 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 the 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, Licensee shall pay to City an additional amount equal to such additional cost as determined by the Director of Transportation and Public Works of the City, or his or her duly authorized representative. 2012 ROW Encroachment Agreement -Commercial Page 2 of 10 5. City may enter and utilize the referenced areas at any time for the purpose of installing or maintaining improvements necessary for the health, safety and welfare of the public or for any other public purpose. In this regard, Licensee understands and agrees that City shall bear no responsibility or liability for damage or disruption of improvements installed by Licensee or its successors, but City will make reasonable efforts to minimize such damage. 6. 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 to City at the time this Agreement is requested an application fee in the sum of Two Hundred Seventy Five and No/100 Dollars ($275.00). Upon execution of this Agreement and annually thereafter, Licensee agrees to pay a fee in the amount of $.56 per square/linear foot of the encroachment area. 7. The term of this Agreement shall be for thirty (30) years, commencing on the date this Agreement is executed by the City of Fort Worth. Provided however, this Agreement shall terminate upon the non-compliance of any of the terms of this Agreement by the Licensee. City shall notify Licensee of the non-compliance and if not cured within thirty (30) days, this Agreement shall be deemed terminated. 8. City shall give Licensee ninety (90) days written notice of termination of this Agreement. Upon termination of this Agreement, Licensee shall, at the option of City and at no expense to City restore the public right-of-way and remove the Improvements encroaching into the public right-of-way, to a condition acceptable to the Director of Transportation and Public Works, or his or her duly authorized representative, and in accordance with then existing City specifications. It is understood and agreed by 2012 ROW Encroachment Agreement -Commercial Page 3 of 10 Licensee that if this Agreement terminates and Licensee fails to remove the Improvements, Owner hereby gives City permission to remove the Improvements and any supporting structures and assess a lien on the Property for the costs expended by the City to remove such Improvements. 9. It is further understood and agreed upon between the parties hereto that the public rights -of -way, alleys, and sidewalks ("public right-of-way") to be used and encroached upon as described herein are 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 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 at any time during the term hereof determines in its sole discretion to use or cause or permit the 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, this Agreement shall terminate upon ninety (90) days written notice to Licensee In the event of termination under this Section 9, Licensee shall perform the obligations regarding restoring the public right-of-way and removing the Improvements as 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 property in which a third party may have an interest. Licensee agrees that it will obtain all necessary permissions before occupying such property. 2012 ROW Encroachment Agreement -Commercial Page 4 of 10 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 said 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 AND EMPLOYEES, 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 SAID IMPROVEMENTS AND ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT 2012 ROW Encroachment Agreement -Commercial Page 5 of 10 CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES 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 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 located and described in Exhibit "A". The amounts of such insurance shall be not less than the following: $1,000,000 Commercial General Liability with the understanding of and agreement by Licensee that such insurance amounts shall 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 provide that it cannot be canceled or amended without at least ten (10) days prior written notice to the Building Official of the City of Fort Worth. A copy of such Certificate of Insurance is attached as attached as Exhibit "B". Licensee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement. 2012 ROW Encroachment Agreement -Commercial Page 6 of 10 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 city streets. All insurance coverage required herein shall include coverage of all of Licensee's contractors. 16. 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 its entirety 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, Texas. 17. In any action brought by the City for the enforcement of the obligations of 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 contract without the prior written approval of the City Manager or his or her designee. Any attempted assignment without prior written approval will be void. Assignment to a secured lender of Licensee in the event of default or foreclosure shall not require City approval provided that said lender shall notify City in writing of its assumption of Licensee s rights and obligations hereunder within sixty (60) days of such assignment resulting from foreclosure or default. No assignment to any secured lender of Assignee shall be effective unless and until written notice of such 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. 2012 ROW Encroachment Agreement -Commercial Page 7 of 10 20. This Agreement shall be binding upon the parties hereto, their successors and assigns. EXECUTED this ` day of CITY City of Fort Worth if By: Ran v le `'rw Director of P1nning and Development ATTEST: , 20 /42 LICENSEE Race Street Lofts, Ltd., a Texas limited partnership By: Race Street Lofts GP, LLC, its General Partner By: Fort Worth Housing Finance Corporation, its Sole Member By: 4.-}ctr,te,Jesus J. Chapa, '1 Assistant General Manager Approved As To Form and Legality • Assistant City Attorney 2012 ROW Encroachment Agreement -Commercial Page 8 of 10 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/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. G EN UNDER MY HAND AND SEAL OF OFFICE this emit," • • •b - • CASSANDRA F. FOREMAN Notary Public, State of Texas My Commission Expires April 26, 2017 Notary Public in and for the State of Texas 2012 ROW Encroachment Agreement -Commercial Page 9 of 10 STATE OF TEXAS COUNTY OF TARRANT 5 16UJ-3b y Jesus J. a Cha Assistant General Manager of the Fort Worth HousingFinance p� g Corporation, a Texas housing finance corporation, on behalf of said corporation, as Sole Member of Race Street Lofts GP, LLC, a Texas limited liability company, General Partner of Race Street Lofts, Ltd., a Texas limited partnership, acting on behalf of such limited partnership. This instrument was acknowledged before me on SARAHJ. ODLE MY COMMISSION EXPIRES November 5, 2015 AFTER FILING RETURN TO: Avis Chaisson, City of Fort Worth Housing and Economic Development Dept. 1000 Throckmorton Street Fort Worth TX 76102 Notar ublic, Sta e o Texas 2012 ROW Encroachment Agreement -Commercial Page 10 of 10 -M- Mt I 0 m 0 cn P1 • 00� XI to O.ZI --I to O .9 w ( teL 1N3f3AVd 313H01900 3tvO •y. 1N3W3AVd 313H3N00 0 ONIG1In8 000M AHOLS-Z ('du y Serns 31383NOO XWM:401S 313HQN i ova pglgXJ MHO- (du) t13) �t �a31100 �P e9rlo 313HON00 (NouornasNoo i�N(i) M �(AVM-AP1HOIH Onend HLOM 3levIHVA H3IVM .9 101Hd £S*IBtttZO 14300 1HIr[iSV3 unun ,9 z't .1.3J2Ld0 '£&Y t B [ t t £O 'N433 sNlmine 000M wo[sF l Gans NO,LNBE 'TT AH01S-Z 21Z . ... 4kH0- 9do 2ttO1413i0104- - i Mr1 1N3113Wd 31383N00 ONI01108 000M A801S-Z 101ud £Sitetttto N300 1N31Y3SV3 unun ,e (du) 11VH ONVH .9'ff SHIMS N00 'SS Li'9On -Ors rov ovoro 11V011 N(HKR ' MA6 _ svva _ sLPW a vmv M Exhibit "B" NRPGR-1 CERTIFICATE OF LIABILITY INSURANCE I OP ID: MN DATE (MMIDD/YYYY) 09/26/13 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(ies) 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 Phone: 480-730-4920 THE MAHONEY GROUP - MESA 1835 South Extension Road Mesa, AZ 85210-5942 Michael W. Brown INSURED Race Street Lofts Ltd The NRP Group LLC NRP Management LLC c/o Brunswick Companies 2857 Riviera Dr Fairlawn, OH 44333 COVERAGES Fax: 480-730-4929 CONTACT NAME: PHONE (NC. No. Ext): E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE INSURER A:Travelers Property & Casualty INSURER B : INSURER C: INSURER D : INSURER E: IN$I IRFR F • IFAX fA/C. No): CERTIFICATE NUMBER: REVISION NUMBER: NAIC # 36161 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, I INSR TYPE OF INSURANCE ADDLa%Awn POLICY NUMBER /MMIDDnEYFYY) 1MM/finllYVY VYI LIMITS GENERAL LIABILITY A X COMMERCIAL GENERAL LIABILITY X SLS6A70598313 CLAIMS -MADE OCCUR A A X GEN'L AGGREGATE LIMIT APPLIES PER: E POLICY I I .Pi R� I X I LOC AUTOMOBILE LIABILITY X ANY AUTO ALL OWNED AUTOS HIRED AUTOS UMBRELLA LIAB EXCESS LIAB DED I X I RETENTION $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below X SCHEDULED AUTOS NON -OWNED AUTOS X X OCCUR CLAIMS -MADE 0 Y/N nN/A 09/19/13 09/19/14 8106A70598313 09/19/13 09/19/14 EX6A70598313 09/19/13 09/19/14 DESCRIPTION OF OPERATIONS! LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) EACH OCCURRENCE DAMAGE TO RENTED PREMISES (Ea occurrence) I MED EXP (Any one person) PERSONAL & ADV INJURY I GENERAL AGGREGATE PRODUCTS - COMP/OP AGG COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY (Per person) BODILY INJURY (Per accident) IPROPERTY DAMAGE (Per accident) I EACH OCCURRENCE IAGGREGATE I I WC STATU- TORY LIMITS I I OER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ E.L. DISEASE - POLICY LIMIT $ 1,000,00 100,00 Exclude 1,000,00 2,000,00 2,000,00 1,000,00 25,000,0001 25,000,00 • CERTIFICATE HOLDER C City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE 1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD