The URL can be used to link to this page

Home My WebLink AboutContract 44479- � �; � � �' RIGHT OF WAY ENCROACHMENT AGREEMENT (COAIAfERCIAL) THIS AGREEMENT is made and entered into by and between the City of Fort Worth, a municipal corporation of Tanant 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 refen-ed to as the "City", and National Retail Properties, LP , acting herein by and through its duly authorized General Partner hereinafter referred to as "Licensee", Owner of the property located at 812 Main Street, Fort Worth, Texas 76102 ("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) ("Improvement") that encroaches upon, uses and/or occupies portions of the space under, on and/or above the streets, alleys, sidewallcs. and other public rights-of- way, such Improvement(s) are described as follows: Pcztio czddition The location and description of said Improvement and the encroachment is more particularly described in Exhibit "A", attached hereto, incorporated herein and made a part hereof for all puiposes. 2. All construction, maintenance and operation in connection with such Improvement, 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 Ci authorized representative. All plans and 2012 ROW Encroachr�e,ut�.�•�e�n�-�C�O�e�� i� rttl,tl t�1 ; �•• i � i � ■ ,�� T ��.,� - or his duly Page 1 of 10 t specifications thereof shall be subject to the prior written approval of the Director of Transportation and Public Works, or his 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 Improvement 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 duly authorized representative. 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. 2012 ROW Encroachment Agreement -Commercial Page 2 of 10 e A 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 and Seventy Five 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 days this Agreement shall be deemed terminated. Licensee may terminate this Agreement in the event that the Improvements are no longer maintained within the encroachment area. : 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 Improvement 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 Licensee that if this Agreement terminates and Licensee 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. � It is further understood and agreed upon between the parties hereto that the public rights- of-way, alleys, 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 2012 ROW Encroachment Agreement -Commercial Page 3 of 10 B public right-of-way for the use and beneiit 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 right of way 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 this Agreement shall automatically terminate. 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 z•ight, 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 before occupying such property. Licensee agrees that it will obtain all necessary permission 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 Improvement, 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 2012 ROW Encroachment Agreement -Commercial Page 4 of 10 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 IMPROVEMENT 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 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 INJIJRY 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: 2012 ROW Encroachment Agreement -Commercial Page 5 of 10 $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. 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 Licensees' 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 Consent Agreement in its entirety in the deed records of Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth, Texas. 1'7. 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 designee. Any attempted assignment without prior written approval will be void. 2012 ROW Encroachment Agreement -Commercial Page 6 of 10 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. 21. The City agrees that any and all of Licensee's obligations hereunder may be performed by its Tenant, Del Frisco — Fort Worth, L.P., or a subsequent tenant or occupant of the Property, pursuant to the City's standard assignment process. EXECUTED this � day of �� , 20� 2012 ROW Encroachment Agreement -Commercial Page 7 of 10 City City of Fort Worth Licensee � � NATIONAL RETAIL PROPER IES, LP, a Delaware limited partnership �" By: NNN GP Corp., a Delaware corporation, as General Partner Bv: � Jl.��'�'�? , /r `` � ;� , ,,�j�';'. , � � J % 4�� '�- RANDLE HARWOOD � DIIZECTOR PLANNING & DEVELOPMENT ATTEST: �`j-��.1.` �. Secretary n �_ ` � _�i� � � � � _ ` ~�',�, �. , ;- ,, :. �k � o, �.�:r ,�, �! ��, By: � - /'% Name: ;� � �u� �� I��:a,�;r,, :� � - Approved As To Form and Legality . ,� , ��: �� - ��.�4'1 � '-•� ` Assistant City Attorney �� 'oo�p0��`\ ..+�'1 l 2012 ROW Encroachment Agreement -Commercial P__,s _�_.,,�.�.-� Page 8 of 10 STATE OF TEXAS COUNTY OF TARRANT � 0 , � ,r , �,Jr ! ,�:� r:x,�� %° ! ;,� �� BEFORE ME, the und signed authori , a Notaty Public in and for the State of Texas, on this day personally appeared � d, lcnown to me to be the person whose name is subscribed to the foregoing instrument, and acicnowledged 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 -•, , � 20 ;��; �, r��. ,. IRMA SAENZ Notary Public STATE OF 7EXAS My Comm. Exp. Jan. 2a, 2016 ,� ' �� l : �, _ ,, " day of _ �� Notary Public in and for the State of Texas � 2012 ROW Encroachment Agreement -Commercial Page 9 of 10 STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this � day of �, 2013 by '�'��n� �o �� ad�g , as of NNN GP Corp., a Delaware corporation, as general partner of National Retail Properties, LP, a Delaware limited partnership, on behalf of the partnership. He/s�ie is personally known to me or has produced as identification. KELLA SCHAIBLE Cnmmission # EE 851262 �:xpires March 11, 201T P,�ndeu ThN Troy Faln Insurence 80D3B5•7019 2012 ROW Encroachment Agreement -Commercial Page 10 of 10 Commission #: My commission expires: � x � � Q' :G- � f-' O� � W N P YI a iJ N -K -�ri r-aF r-vf r-s� r-r r-r r-af s-nt s-ff r-r s-r P � I I I I ( I � I I I I ( 1 si � � � � ' i � � � ;� I � f^^ r� D1 I � ' 1 _ I I 's I � ___ ' 't _ � ___I _ I� 1_'— I� iy ' � r-�K r r-r i-r r-r � . • s I l � � � g G�` E E � � _ � �,� � ' �� - �'° � ,..J '"� e ' ,. o --- ! h' a y _I' � - . I n ^ " .�o .m � n ' I � � � � � h — __ _ _ _.—_ _ —_ _ 1 , �_—_ -� � , � � �-- �� 1_ � o � � , r� _� _ 1_ o —1 _— � — _ m �c _ i � ¢ @��,� � m }� _ ;,�� _ _ � ��-�•�-•-• ( � � �� ; I _ � ��S;�£� . I � I q �y4 ?> � � � - .. L�Ct �y _ I I # �� - I� ;_ �� , � � � � °"" � ( �� i � � r $� I �e� � t �� 4 � � t.� � � _ —, �x ,� 5 — I � -� ' �� , � � � ,�� !� � � � � § , � � � � , � ' � p�pg�� - �� j r-e .: Cf � a�� Cf — 1 1 X� $ `�,�� ~ I g � 1 ' � I � ' ' I p - (-f f .. � p Ys « I P �`. � � I a � 5 °� � I � I� zf _ _ �n5 = _ <J _ ��. �; � � � � rf u y � � r r- �_._._.. �.�,_ � ��a��a�' � �� o ¢ i;�a��e� � �� 8 � ��g �� ea� A � aa� � � � � ��Y o �� N � � �� { ± " a�� E d i DEL FRISCO'S �� § g� g o 00 � I N � � o � � 1 DOUBLE EAGLE STEAK HOUSE ,: :�:... _ �� "o ntru�rr g n° � = z � 9 �,�.,�„_ g '_; : �� N � � � � } F �: � � �S � ��¢ � a $ aia(r:eanrsoosiesr,�u�wraav � :�` �� - � V �� xs.eiru��e.furtE�ao 9 � $ n O mvna�a.tz�an X S � � N �1 � :oRo CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDD/YYYY) � 04/12I2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS<UPON THE CERTIFICATE HOLRER:-'THIS �- CERTIFICATE DOES NOT AFFIRMATNELY 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 WSURED, the policy(ies) must be endo�sed. �;if SUBROGATION IS WAIVED, s,ubject,tof:., the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does noi confer rights to th�_ ._ certificate hoider in Heu of such endorsement(s). , PRODUCER Marsh USA, Inc. 4400 Comerica eank Tower 1717 Main Street Dallas, TX 75201-7357 Atin; Susan Fagan, Susan.D.Fagan@marsh.com 760409�DeIFr-GAWXX-13-14 INSURED Del Frisco's Restaurant Group, loc. Atin: Risk Management Dept 2711 N Haskell, Suite 1800 Dalias, TX 75204 GAW NAIC # COVERAGES CERTIFICATE NUMBER: HOU•002216349-Ot REVISION NUMBER:7 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD ' INDICATED. NOTIMTHSTANDING 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 HEREW IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID; CCAIMS ;.: ; "' ""' WSR ADDL SUBR pOLICY EPF POL,ICY EXP � 5 � LTR TYPEOFINSURANCE pOLICYNUMBER MM/DDlYYYY MMIDD/YYYY � -� LIMITS ',i4,3 _.� . A GENERAL LIABIUTY � GLO9142027-06 03/12/2013 03/12/2014 'EACH OCCURRENCE $ ;i;OQO,QOQ:: X COMMERCIA� GENERAL LIABIUTY DAMAGE TO RENTED � 250,Q00 '� PREMISES Ea occurrence 5 CLAIMS-MADE �OCCUR � `f`' '�' � `f�� Y,500 X LIQUOR LIAB. $1 M/ 52M ; MED EXP (Any one person) S � � �� PERSONAL & A�V INJURY 5 ��'�,OOO,OOQ� � X SIR-$5O,OD0 � � �GENERALAGGREGATE 5 �2,OOQ000 � GEN'LAGGREGATELIMITAPPLIESPER: PRODUCTS-COMP/OPAGG $ 2,0OO,OQO X POLICY PR�� X LOC Aggregate = Per Policy g 30,000,000 ; A AUTOMOBILE LIABILITY 8AP5344701-08 03/1212013 03/1212014 � COMBINED SINGLE LIMIT �1,000,000 Ea accident X ANY AUTO BODILY INJURY (Per person) $ ALL OWNED SCHEDULED BODILY INJURY Per acGdent S AUTOS AUTOS ( ) X HIREDAUTOS NON-0WNED PROPERTYDAMAGE - AUTOS � Pe acc'dent $ S UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE • AGGREGATE $ � � DED RETENTIONS � g � A �WORKERS COMPENSATION WC9142026-06 (AOS) 03/12/2013 03/12/2014 �� X WC STATU- OTH- ---- � AND EMPLOYERS' LIABILITY ' � ' C ANY PROPRIETOR/PARTNERlEXECUTIVE Y� N �NC509593100 (MA) 03/12l2013 03/12/2014 �:1,��,�� - OFFICER/MEMBER EXCLUDED9 N N/ A E.L. EACH ACCIDENT $ (Mandatory In NH) - E.L: DISEASE - EA EMPLOYE $ �- ��Q- � if yes, describe under - � � ' DESCRIPTION OF OPERATIONS below E.L DISEASE - POLICY LIMIT $ 1,{J00900 ` B TX Noo-Subscriber Occupalionai EEG0005192-00 03/12/2013 03/12/2014 CSL per covered person $�,OAO,�Op '; Accident Insurance Policy CSL per covered occurrence $20,000 000 �-t �` ; DESCRIPTION OF OPERATIONS / LOCATIONS ! VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is - -� � "" � ' ` - � � � ' � - t Re: Del Frisco's Double Eagle Steak House, 812 Main St., Fort Worth, TX 76102 " Del Frisco's Double Eagle Steak House is included as a Named Insured. Please see attachad. 1 EXHIBIT B - , � .,.,..�� c�ry or For� wor�n 1000 Throckmorton St. Fort Worth, TX 76102 ACORD 25 (2010/05) u�ei wsurtER n; Zurich Amedcan Insurance Company wsuReR e: North American Capacity Ins Co iNsurteR c; American Zurich Insurance Company SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY pROVISIONS. AUTHORI2ED REPRESENTATIVE � � - of Marsh USA Inc. � Wiiliam Hines Gt/.��;� O 1988-20,10 ACORD CORPORATION. All rights r� The ACORD name and logo are registered marks of AGORD� �