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HomeMy WebLinkAboutContract 56243 Date Received: 08/31/2021 City Secretary Time Received: 1:00 PM Number: 56243 PUBLIC PROPERTY RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT TIER 77 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 Director of the Development Services Department, and (2) Campus Hotel Venture, LP, a Texas limited partnership ("Licensee"), acting by and through its duly authorized Vice President. RECITALS WHEREAS, Licensee is the owner of a long-term ground lease covering the real property located at 2500 West Berry,Fort Worth, Texas 76109 ("Property"),being more particularly described in the attached Exhibit "A" which is incorporated herein for all purposes; and WHEREAS, the City owns a right-of-way corner clip (the `'Public Property") adjacent to the Property as shown in the attached Exhibit"B,"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 Property; 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 Property as described in and at the location shown on Exhibit "C," but only to the extent shown thereon, for the purpose of constructing, installing, and maintaining a building corner (the '`Encroachment"). Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining the Encroachment within Tier II ROW Encroachment Agreement PN21-00086 OFFICIAL RECORD 29030078v.2 CITY SECRETARY FT.WORTH,TX the Public Property. Licensee shall not expand or otherwise cause the Encroachment to further infringe in or on the Public Property beyond what is specifically described in Exhibit "C." 2. All construction, installation, maintenance, and operation of the Encroachment and the use or occupancy of the Public Property shall comply with and be performed in strict compliance with this Agreement and with the charter, ordinances, codes, and policies of the City. Prior to the construction or installation of the Encroachment, Licensee shall submit all plans and specifications to the Director of the Development Services Department or duly authorized representative. Licensee shall not commence construction or installation of the Encroachment nor make any use of the Public Property until after the execution of this Agreement. 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 and the use and occupancy of the Public Property, 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 of Public Property, Licensee shall pay to City an additional amount equal to such additional cost as determined by the Director of Transportation and Public Works, the Director of the Water Department, the Director of the Development Services Department, or their duly authorized representative. 4. Licensee agrees that City may enter and utilize the Public Property at any time for any public purpose,including installing,repairing,replacing,or maintaining improvements to its public facilities or utilities necessary for the health, safety, and welfare of the public. The City shall have no responsibility or liability for any damages related to the Encroachment resulting from the City's use of the Public Property; however, the City shall 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 Property to a condition acceptable to the Director of Transportation and Public Works, the Director of the Water Department,the Director of the Development Services Department or their duly authorized representative. Any such removal of the Encroachment shall be in accordance with then-existing City regulations and policies. It is understood and agreed to by Licensee Tier II ROW Encroachment Agreement Page 2 of 13 PN21-00086 Revised 11/2020 29030078v.2 that if this Agreement terminates and Licensee fails to remove the Encroachment and restore the Public Property, Licensee hereby gives City permission to remove the Encroachment and any supporting structures from the Public Property, to restore the Public Property, and to 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 Encroachment and use of Public Property as 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 Seven Hundred Dollars ($700.00). Additionally, Licensee agrees to pay a fee in the amount of$100.00 upon execution of this Agreement. 7. The term of this Agreement shall be for fifty (50) years, commencing on the date this Agreement is executed by City. However, the City may terminate this Agreement upon Licensee's noncompliance with any of the terms of this Agreement or in the event that the Licensee's long-term ground lease of the Property is terminated. City shall notify Licensee in writing of any such noncompliance and if Licensee does not cure the noncompliance within thirty (30) days of notice from City, the City may terminate this Agreement. However, the City may, at its sole option, allow the Agreement to remain in effect so long as Licensee has taken reasonable measures to cure the noncompliance or is continuing to diligently attempt to remedy the noncompliance. 8. It is further understood and agreed between the parties hereto that the Public Property to be used and encroached upon is held by City as trustee for the public; that City exercises such powers over the Public Property 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 Property 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 Property 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 both the Encroachment and the public purpose. Tier II ROW Encroachment Agreement Page 3 of 13 PN21-00086 Revised I1/2020 29030078v.2 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 "C." The amounts of such insurance shall be not less than S1,000,000 with the understanding and agreement by Licensee that such insurance amounts may be revised upward at City's option (as long as any such revision is to a commercially reasonable amount) 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 "D" and incorporated herein for all purposes. 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 restoration of the Public Property. All insurance coverage required herein shall include coverage of all Licensee's contractors and subcontractors. Tier II ROW Encroachment Agreement Page 4 of 13 PN21-00086 Revised 11/2020 29030078v.2 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 the county in which the Encroachment is located. 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 use of the Public Property. 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 Property and is not a conveyance of any right, title, or interest in or to the Public Property, 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. 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. Tier II ROW Encroachment Agreement Page 5 of 13 PN21-00086 Revised 11/2020 29030078v.2 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 except as hereafter provided, 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 leasehold estate in the Property, Licensee may assign all of its rights and obligations under this Agreement to the new owner of the leasehold estate in 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 assigns lent 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] Tier II ROW Encroachment Agreement Page 6 of 13 PN21-00086 Revised 11/2020 29030078v.2 City: Licensee: CITY OF FORT WORTH CAMPUS HOTEL VENTURE, LP LPL By: DJ Harrell cA g27,202115:13 CDT) By: Campus Hotel Venture GP LLC, its general partner D.J. Harrell, Director of the Name: Thomas W. Sabin, Jr. Development Services Department Title rest t Date: Aug 27,2021 Date. 07/30/2021 A, o00000 T ad �>o ATTEST: o Approved As To Form and Legality o o o Acting City Secretary Thomas Royce Hansen Assistant City Attorney Ordinance No. 24161-04-2020 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 Services Tier 11 ROW Encroachment Agreement OFFICIAL RECORD PN21-00086 29030078v.2 CITY SECRETARY FT.WORTH,TX ***THIS PAGE FOR CITY OF FORT WORTH OFFICE USE ONLY*** 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 D.J. Harrell, 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 27th day of August 20_2 DigitaIlysignedbyJenniferL. Jennifer L. Ezernack pRYPUe JENNIFER L. EZERNACK Ezernack Date:2021.08.3016:52:16 z Notary Public 05'00' * * STATE OF TEXAS Notary I.D. 130561630 Notary Public in and for the State of Texas My Comm.Exp.Mar. 1,2024 After recording return to: Development Services Department Development Coordination Office 200 Texas Street Fort Worth, Texas 76102 Tier II ROW Encroachment Agreement OFFICIAL RECORD PN21-00086 29030078v.2 CITY SECRETARY FT.WORTH,TX 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 Thomas W. Sabin, Jr., Vice President of Campus Hotel Venture GP LLC, the general partner of Campus Hotel Venture LP 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 Campus Hotel Venture LP, a Texas limited partnership , and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 30 day of July 120 21 Notary Public in and for t� State of Texas �TFor 09-2II1 Tier II ROW Encroachment Agreement PN21-00086 OFFICIAL RECORD 29030078v.2 CITY SECRETARY FT.WORTH,TX EXHIBIT A Description of the Licensee's Property Lot 1-R, Block 23, Prospect Heights Addition to the City of Fort Worth, Tarrant County, Texas, according to plat recorded in Volume 388-93, Page 537, Deed of Records of Tarrant County, Texas, and being one and the same property which was conveyed in deed recorded in Volume 14062, Page 504, and Volume 14119, Page 392, Deed of Records of Tarrant County, Texas Tier II ROW Encroachment Agreement Page 10 of 13 PN21-00086 Revised 11/2020 29030078v.2 VVEST BOWIE STREET. -- -- -- cn I I I � II I I I I � I I � II I I I 3 ( I i s m o f� O Z 0 EXISTING 4 > i Q BUILDING I m y > r I Q w < , V I II o , M � O O O O C • a ri I o i a C7 � •e a J � LL WEST BERRY STREET ¢ N ROW ENCROACHMENT SEE EXHIBI T A—1 N .n Q T F PAGE 1 OF 3 0 'W DU NAWA VICINITY MAP o 100 200 m HYATT PLACE 550 Bailey Avenue•Suite 400•Fort Worth,Texas 76107 Tel:817.335.1121 ROW ENCROACHMENT a (TX REG.F-1114) w SCALE:V=100 ft. K 0 a EXHIBIT B Depiction of the Public Property Tier II ROW Encroachment Agreement Page 11 of 13 PN21-00086 Revised 11/2020 29030078v.2 Cdonial JP 0.R Dsf Coup WEST BOWIE STREET (SO-WIDTH RIGHT-OF-WAY) VOLUME 63,PAGE 59 a�/z• P.R.T.C.T, fn a 5yn-iRw Rm wm un YE110W CPP STMPEO d`y fTE Is.R N89'41'44"E 246.00'p a, / / nner z�a�0oo.2 / / IOINI 30' a 30' 60' w1.3a3a�Pc�Eaee°as? / // SC FEET 30, VICINITY MAP -------- NOT TO SCALE L- VJL.3-9].PG 511.P.Rr.G*.�/ / F -1 — L4 P(--Irl.o-R 1, — / / n a swnacaFMT w r z umj 15.0' W O U > K WALL a CS QCS 2.a LLJ c0 1.3• �=m IJ 30 tea_ y U Z a F 2 m lQ/l t°> LOT 1R,BLOCK 23 I.d BRICK WALL 3 PROSPECT HEIGHTS 09' C.C.D.NO.0219100072 / P.R.T.C.T. 1.s NOTES: $3 TEXAS CHRISTIAN UNIVERSITY 1.Bearings shown hereon are based on the Texas VOLUME 16588,PAGE 221 State Coordinate System,North Central Zone(NA083) D.R.T.C.T. sing GPS observations and mea menu. Bearings and distances a su face valuers using a combined scale factor of 0.999880014 as 2.Actarding to the Flood Insurance Rate Mop far 4.5 Tarrant County and Incarpora ted Areas,Map Number an 48439C0305L,Map Effective Date:March 21,2019,the subject property is located in Zone"X (unshaded). This by does flat reflect any type of flood SJR, study by this firm. STORY 3.Al wal property Corners are 5/8'iron rods with yellow , 5.RJ,1jJ :.BRICK,CONCRETEnAND METAL BUILDING caps stamped"Dunay Assoc."unless otherwise noted hereon. 1P p6 28.975 SQUARE FEET 4.Not all improvements are shown hereon. C.C.D.NO-=COUNTY CLERK'S DOCUMENT NUMBER 7.4' / D.R.T.C.T.=DEED RECORDS,TARRANT COUNTY,TEXAS 1.3 P.R.T.C.T.=PLAT RECORDS,TARRANT COUNTY,TEXAS CERPFICATE: P I,the undersigned,hereby certify to Campus Hotel Venture LP and Veritex Community Bank that this map is an accurate representation of an actual 9 r-y on the ground antler my _ direction and supervision in the month of April, 2021. o S (SLrveycrs Name) UROPERT NE Registered Professional Land Surveys' Texas NE Registration Na.5570 '3 srg&dun—yc.m Date:April 16,2021 Revision Date: April 21,2021(Certificate) 19'9 D. tl This certificate is yoked and the s rvey null Q.- an void if this document is altered din any ] PROPERtt DNE man setl by or person other than those , addressed above r does t bear an original / DETAIL"A" signature and seal of the Surveyor. R' 1"=10' lE OF 7f a., 7.1 7.1' 4.T y!¢41�ERo 9f 9 °.9' ].0 a9.T.l ai9.7'I aisiI ol8.a' oi9 41' .. 1.0 S. alY a.9'0.9'STEPHEN R.CLOSUP y'e, x-CUT '0' Fas mIs ARDUNA Al .57 r ''sk. S89'41'44"W 246.00'ssla P� WEST BERRY STREET - 44"W UFV (100'WOTH RIGHi-OF-WAY) �IRFaurvD�wIROONRODNMM Z ouxAwnv A9Sac.LP BUILDING '�' AS-BUILT SURVEY O DUNAWAy Being.paH of Lot 1-R,Block 23,P—pRHeights,an Addition to the CitV of Fort J&W Bdey Avenue•Suffe 400•Fat Waft,Taxes 76107 Wonh,according m the plat recorded in County Clerk's Document Number Tel'817 335 1121 D319100072,Plat Bernal:,Tarrant county.Trios TEXAS REGISTERED SURVEYING RRM NO.10098100 DATE:APRIL 16,2021 JOB NO.BOG3919.006 EXHIBIT C Depiction and description of the Encroachment Tier II ROW Encroachment Agreement Page 12 of 13 PN21-00086 Revised 11/2020 29030078v.2 / l I l l I l l I l l EXISTING I BUILDING l I l U I a a w � w l cal N / V N LC Q / N L i m G 0 A-1 o � 0 M O O WEST BERRY STREET a a w a M Q N N n N Q T F PAGE 2OF3 0 its. EXHIBIT C DUNAWAY a zo 40 550 Bailey Avenue•Suite 400•Fort Worth,Texas 76107 HYATT PLACE Tel:el7.sss.112' ROW ENCROACHMENT a (TX REG.F-1114) J SCALE: 1"=20 ft. 0 J 2 650 650 BUILDING LAB ALL ' 1,-'-EA1ST7NG GRADE d 0.VR 3 645 , 645 U a fRADEBEAM U C W N N 7 Q N i L L X W m C G U o O rn M 640 01 640 0 M 0+00 0+50 1+00 1"=2'V 1"=20'H CD a M Q N N n N Q PAGE 3OF3 0 its. EXHIBIT C DUNAWAY a zo 40 550 Bailey Avenue•suite 400•Fort Worth,Texas 76107 HYATT PLACE Tei:el7.sss.112' ROW ENCROACHMENT a (TX REG.F-1114) W SCALE: 1"=20 ft. 0 0 J 2 LINE SEGMENTS / I SEGMENT LENGTH BEARING/DELTA L1 9.51 N44'41' 44 E Ld L2 1.51 S44'41' 44"W / ( Q L3 1.08 NO'00'20"W I L4 1.07 N89'59' 40 E Li L2 a � V L3 � � I L4 � WEST BERRY STREET U O U W Q W C BEING a 0.57 square foot building row encroachment 4 located in lot 1—R, Block 23, Prospect Heights, on addition to the City of Fort Worth, Tarrant County, L Texas, said area being more particularly described by metes and bounds as follows: G COMMENCING at an iron pin found at the southeast corner of lot 1—R, Block 23, Prospect Heights, M M THENCE North 4441'44" East, 9.51 feet to the POINT OF BEGINNING; a THENCE North 8959'40" East, 1.07 feet to a point; THENCE North 0 00'20" West, 1.08 feet to a point; THENCE South 4441'44" West, 1.51 feet to the POINT Q OF ENDING; N N n N Q T F PAGE 1 OF 1 0 its. > A%*— EXHIBIT C DUNAWAY a zo 40 550 Bailey Avenue•suite 400•Fort Worth,Texas 76107 HYATT PLACE Tei:el7.sss.112' METES AND BOUNDS a (TX REG.F-1114) W SCALE: 1"=20 ft. 0 J 2 EXHIBIT D Certificate of Insurance Tier II ROW Encroachment Agreement Page 13 of 13 PN21-00086 Revised 11/2020 29030078v.2