HomeMy WebLinkAboutContract 56387 Date Received: 09/30/2021 City Secretary
Time Received: 10:03 AM Number: 56387
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 GPIF CD HOTEL LLC, a
Delaware limited liability company("Licensee"), acting by and through its duly authorized
officer.
RECITALS
WHEREAS, Licensee is the owner of the real property located at West 7`h Street
and Van Cliburn Way, Fort Worth, Texas 76107 ("Property"), being more particularly
described in the attached Exhibit "A" which is incorporated herein for all purposes; and
WHEREAS, the City owns a street (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 12",21" and 24" storm drain (the"Encroachment"). Upon completion of
the Encroachment, Licensee agrees to be responsible for maintaining the Encroachment
within the Public Property. Licensee shall not expand or otherwise cause the
Tier II ROW Encroachment Agreement OFFICIAL RECORD
CITY SECRETARY
PN21-00066,PN21-00067
FT. WORTH, TX
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
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
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Page 2 of 16
PN21-00066,PN21-00067 Revised 11/2020
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 Five Hundred Dollars ($500.00). Additionally, 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, which amount equals $67.68 based on 47 linear feet.
7.
The terin of this Agreement shall be for sixty (60) 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. 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.
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
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Page 3 of 16
PN21-00066,PN21-00067 Revised 11/2020
LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL
PERSONS, OF WHATSOEVER HIND 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 and that Licensee shall so revise such amounts immediately
following written notice to Licensee of such requirement. 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.
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.
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Page 4 of 16
PN21-00066,PN21-00067 Revised 11/2020
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.
17.
The parties agree that the duties and obligations contained in Section 5 shall survive
the termination of this Agreement.
18.
Licensee, or any successor, 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 the
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PN21-00066,PN21-00067 Revised 11/2020
City, and any attempted assignment without such written approval shall be void.
Foreclosure by a secured lender of a Licensee or assignment to a secured lender by such
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 such Licensee's rights and obligations hereunder. However, no change
of ownership due to foreclosure or assignment to any secured lender of a Licensee shall be
effective as to City unless and until written notice of such foreclosure or assignment is
provided to City.
Notwithstanding the foregoing,Licensee may,without prior written consent, assign
any or all of its rights, privileges or duties hereunder to an affiliate (defined as an entity
under common control with Licensee) or to the purchaser of the Property ("Allowed
Assignment"). In the event of an Allowed Assignment, Licensee will notify the City by
providing Proper Notice as defined below of such Allowed Assignment. `'Proper Notice"
under this Agreement will require that the notice by the Licensee be (1) submitted within
fifteen(15) days of such assignment; (ii)_in writing; (iii) submitted via certified mail at the
then current address of Licensor (currently 200 Texas Street, Fort Worth, TX 76102) and
(iv) directed to "Attn: Director, Development Services, Contract Management". If Proper
Notice of an Allowed Assignment occurs, the new owner shall be deemed to have accepted
Licensee's rights, duties, and obligations hereunder, and this Agreement shall be deemed
assigned with regard to the applicable Property and the new owner will be required to
provide an updated Certificate of Insurance in accordance with the terms of this
Agreement. In the event of an Allowed Assignment, Licensee shall automatically be
released from any further obligation or liability under this Agreement. If Proper Notice of
an Allowed Assignment is not provided as defined above, then such assignment shall be
void.
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
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City: Licensee:
CITY OF FORT WORTH GPIF CD TEL I1
By: DJ Harrell(Sep 28,202108:28 CDT) B —
•1 D.J. Harrell, Director of the Kevin Crum, Senior Vice
Development Services Department President, Development
Date: Sep 28,2021 Date: a
FORr
)G F° 000
°
D
.'o
ATTEST: 9v o o_0 Approved As To Form and Legality
°o i�d
�1�
°O000000°
, - a �'exP'.
Ronald P. Gonzales Thomas Royce Hansen
Acting City Secretary Assistant City Attorney
Ordinance No. 24161-04-2020
Contract Compliance Manager:
By signing I acknowledge that 1 am the person
responsible for the monitoring and administration
of this contract, including ensuring all performance
and reporting requirements.
Tennifer Qernack on behalf o-F,
Jennifer Ezemack on behalf of(Sep 28,202108:22 CDT)
Janie S. Morales
Development Services
Tier II ROW Encroachment Agreement OFFICIAL RECORD
PN21-00066,PN21-00067 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 28thday of
September , 20 21
,�pRYPGe JENNIFER L. EZERNACK
Digitally signed by Jennifer L. 2 c Notary Public
Jennifer L. Ezernack Ezernack * * STATE OF TEXAS
Date:2021.09.28 09:06:52-05'00' 9jFOF" P 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
OFFICIAL RECORD
CITY SECRETARY
Tier II ROW Encroachment Agreement FT. WORTH, TX
PN21-00066,PN21-00067 Revised 11/2020
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 Kevin Crum ,Senior Vice President , 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 GPIF CD HOTEL LLC, a Delaware limited liability company,
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ),7`f4) day of
2021.
PENNY ESPINOSA
Notary Public,State of Texas
Notary Publiv in and for the a': Q= Comm. Expires 06-23-2023
State of Texas '/"°i���` Notary ID 6829284
OFFICIAL RECORD
Tier 11 ROW Encroachment Agreement CITY SECRETARY
PN21-00066,PN21-00067 FT. WORTH, TX
EXHIBIT A
Description of the Licensee's Property
Tract 1:
Lot 1R,Block 5,Van Zandt's Hillside Addition, an Addition to the City of Fort Worth,Tarrant County,
Texas, according to the plat thereof recorded in ec4D221271821, Real Property Records, Tarrant
County, Texas.
Tract 2:
BEING a 1.611 acre tract of land situated in the John P.Montgomery Survey, Abstract Number 1030,
City of Fort Worth, Tarrant County, Texas being all of Lots 4 through 7 and a portion of Lot 8, Block
1, Van Zandt Hillside Addition an addition to the City of Fort Worth according to the plat recorded in
Volume 204, Page 4, Plat Records of Tarrant County, Texas and being a portion of that tract of land
described as Tract 1 in the instrument to Museum Place Block B, Ltd. recorded in Document Number
D208148859, Deed Records of Tarrant County, Texas; said 1.61 1 acre tract of land being more
particularly described as follows:
BEGINNING at a 5/8 inch iron rod with plastic cap stamped "Dunaway Assoc LP" set for the
intersection of the easterly right-of-way line of Van Cliburn Way(a 50 foot wide right-of-way)and the
southerly right-of-way line of West 7th Street (a variable width right-of-way) for the northwesterly
corner of said Lot 8;
THENCE with the southerly right-of-way line of West 7th Street South 89' 55' 41"East a distance of
249.85 feet to a 5/8 inch iron rod with plastic cap stamped "Dunaway Assoc LP" set for the
northwesterly corner of the tract of land described in the instrument to PYNX, Ltd., recorded in
Document Number D20634.5295,Deed Records of Tarrant County, Texas;
THENCE departing the southerly right-of-way line of West 7th Street with the westerly line of said
PYNX, Ltd. tract South 00' 03' 43" East a distance of 218.00 feet to an "X" cut in concrete in the
northwesterly right-of-way line of Camp Bowie Boulevard (a variable width right-of-way) for the
southwesterly corner of said PYNX,Ltd.tract;
THENCE with the northwesterly right-of-way line of Camp Bowie Boulevard South 63°06' 01"West
a distance of 259.71 feet to a 5/8 inch iron rod with plastic cap stamped "Dunaway Assoc LP" set for
the southwesterly corner of the tract of land described in the instrument to the City of Fort Worth
recorded in Document Number D220 1 596 1 1,Official Public Records of Tarrant County, Texas;
THENCE departing the northwesterly right-of-way line of Camp Bowie Boulevard with the
northeasterly line of said City of Fort Worth tract North 67'31' 42" West a distance of 19.61 feet to a
518 inch iron rod with plastic cap stamped"Dunaway Assoc LP"set in the easterly right-of-way line of
Van Cliburn Way for the northerly corner of said City of Fort Worth tract;
THENCE with the easterly right-of-way line of Van Cliburn Way North 00'03'43"West a distance of
328.32 feet to the POINT OF BEGINNING;
CONTAINING a computed area of 1.611 acres(70,182 square feet)of land.
Tier II ROW Encroachment Agreement
Page 10 of 16
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Tier II ROW Encroachment Agreement
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Tier II ROW Encroachment Agreement
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EXHIBIT D
Certificate of Insurance
Tier II ROW Encroachment Agreement
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EXHIBIT E
Form of Assignment of Encroachment Agreement
Date Received: City Secretary
Time Received: Number:
ASSIGNMENT OF ENCROACHMENT AGREEMENT
City Secretary Contract No.
THIS ASSIGNMENT OF ENCROACHMENT AGREEMENT
("Assignment") is made and entered into as of this day of ,20 ,by
and between the CITY OF FORT WORTH, a Texas home-rule municipal corporation
("Citv"), , a ("Assignor"), and , a
("Assignee"). Sometimes herein City, Assignor, or Assignee may also be referred to
individually as a"Party" or collectively as the "Parties."
WITNESSETH:
WHEREAS, the City entered into an Encroachment Agreement, City Secretary
Contract No. (the *'Encroachment Agreement"), on the day of September,
2021, with Assignor, the owner of certain real property more particularly described in the
attached Legal Description (the '*Property") located adjacent to or near the City's right-
of-way on which the encroachments are located. The encroachments are more particularly
described in the Encroachment Agreement, attached hereto as "Exhibit A" and
incorporated herein by reference for all purposes, and are referenced therein and herein as
the "Improvements";
WHEREAS, the Encroachment Agreement was recorded the day of
, 2021, as Instrument No. in the Real Property Records of
Denton County, Texas;
WHEREAS,Assignor desires to assign the Encroachment Agreement to Assignee.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the above and foregoing
premises and the mutual covenants, terms, and conditions herein contained, and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Parties hereby agree as follows:
Tier II ROW Encroachment Agreement
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1. Assignor hereby assigns, transfers, and conveys all rights and interests and
delegates it duties and obligations under the Encroachment Agreement to Assignee.
2. Assignee hereby accepts the Assignment granted herein, and assumes all of
Assignor's rights, duties, and obligations arising under the Encroachment Agreement.
3. Assignor has full right, power, and authority to enter into this Assignment,
to make the representations set forth herein, and to carry out Assignor's obligations
hereunder. Assignee has the full right, power, and authority to enter into this Assignment,
to make the representations set forth herein, and to carry out Assignee's obligations
hereunder.
4. The effective date of this Assignment shall be the date of its execution by
Assignor and Assignee (the`Effective Date"). All rights,duties, and obligations under the
Encroachment Agreement arising, accruing, or relating to the period before the Effective
Date are allocated to Assignor, and all rights, duties, and obligations arising, accruing, or
relating to the period thereafter shall be allocated to Assignee.
5. Except as otherwise expressly set forth in this Assignment, Assignor will
be discharged from any and all further obligations under the Encroachment Agreement as
of the Effective Date.
6. Assignor represents, warrants, and covenants with City and Assignee that
as of the Effective Date,Assignor is not in default of any of its obligations contained in the
Encroachment Agreement.
7. Any notice given by any Party to another Party must be in writing and shall
be effective upon receipt when (i) sent by U.S. mail with proper postage, certified mail
return receipt requested, or by a nationally recognized overnight delivery service, and (ii)
addressed to the other Party at the address set out below or at such other address as the
receiving Party designates by proper notice to the sending Party.
City
Development Services Department
Attn: Director
200 Texas Street
Fort Worth TX 76102
Attention: Director
Assignor
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Assignee
8. Except as herein otherwise provided, this Assignment will be binding upon
and inure to the benefit of the Parties and their respective successors and assigns.
9. Assignee shall cause this Assignment to be filed of record at Assignee's
expense in the Real Property Records for Tarrant County, Texas.
10. The Certificate of Insurance for the Assignor attached as Exhibit`B" to the
Encroachment Agreement is hereby deleted and replaced with the attached Certificate of
Insurance from the Assignee as "Exhibit B, Revised."
11. All terms and conditions of the Encroachment Agreement not amended
herein remain unaffected and in full force and effect, are binding on the Parties, and are
hereby ratified by the Parties. Capitalized terms not defined herein shall have meanings
assigned to them in the Encroachment Agreement.
12. This Assignment may be executed in multiple counterparts, each of which
shall be deemed an original, and all of which,when taken together, shall constitute one and
the same document which may be evidenced by one counterpart.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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