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HomeMy WebLinkAboutContract 58168 Date Received: 09/30/2022 Record Number: Time Received: 10:13 am City Secretary No.: 58168 TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY This TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBILC PROPERTY ("Agreement") is made and entered into by and between the City of Fort Worth, a home-rule municipal corporation of the State of Texas ("City"), acting herein by and through its duly authorized Building Official, and UG Magnolia LP, a Texas limited partnership ("Grantee"), acting by and through its duly authorized representative. WITNESSETH: 1. For and in consideration of the payment by Grantee of the charges set out below and the true and faithful performance of mutual covenants herein contained, City hereby grants to Grantee permission to temporarily encroach upon, use and occupy a portion of the space under, on and/or above a public access and utility easement located on Grantee's property located at 1066 W. Magnolia Street which ultimately connects to Washington Avenue in the City of Fort Worth by enclosing the public access and utility easement with construction fencing and using the public access and utility easement for construction of a building and improvements on Grantee's property outside of the public access and utility easement. The location and description of said encroachment is more particularly described in Exhibit "A" attached hereto, incorporated herein and made a part hereof for all purposes. 2. All use and occupancy of the public access and utility easement under this Agreement shall be in strict compliance with the Charter, Ordinances and Codes of the City of Fort Worth and in accordance with the directions of the Building Official and the Director of Transportation and Public Works of the City. 3. Upon expiration of this Agreement and the privileges granted hereunder, there shall be no encroachment by Grantee in, under, on or above the surface of the public access, and utility easement, including, but not limited to trees, markings, curbs, gates, fences, or any other improvements, except as otherwise approved in writing by the City OFFICIAL RECORD TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY CITY SECRETARY FT. WORTH, TX of Fort Worth. It will be a violation of this Agreement, during the term as set forth herein, for Grantee to revise any plans that have been submitted by Grantee for a building permit that would attempt to place improvements within the City's public access and utility easements, including but not limited to curbs, markings, trees or access gates, unless an easement abandonment or vacation of the City's public access and utility easement is approved by City Counsel. 4. Both parties agree that an encroachment fee (the "Fee") for the temporary privilege of encroaching upon the public access and utility easement in the amount of $2,261.25 has already been provided by Grantee. The Fee is calculated in the manner and amount prescribed by the Building Code of the City of Fort Worth for temporary use or occupancy of public property for the term of the Agreement. If the term of this Agreement is extended by the parties, Grantee shall owe an additional fee to the City for the extension period. 5. Grantee, at no expense to the City, shall make proper provision for the relocation and/or installation of any existing or future traffic control devises or other improvements affected by such encroachment, use and occupancy, including the securing of approval and consent from 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 traffic control devise or improvement owned or constructed by or on behalf of the public or at public expense is made more costly by virtue of the existence of such encroachment and use, Grantee shall pay to City an additional amount equal to such additional cost as determined by the City. 6. The term of this Agreement shall be from August 8, 2022 to October 21, 2022; provided, however, Grantee shall have one (1) option to extend this Agreement until April 21, 2023 ("extension period") by providing written notice and paying the additional fee for the extension period to the City of Fort Worth which will be in an amount of $5,487.30. Notwithstanding the foregoing, should the need for the encroachment granted hereunder at any time cease, Grantee agrees to immediately notify City of such condition; and, upon receipt of such notice by the Building Official of the City of Fort Worth, this Agreement shall terminate. 7. It is expressly understood and agreed that this Agreement is for a temporary encroachment in, under, over and upon the public access and utility easement located and described in Exhibit`'A". This Agreement shall not be construed as granting a permanent TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY easement, encroachment or license upon City's public streets, alleys, sidewalks, or other rights-of-way, nor shall this Agreement be construed as vacating the public access and utility easement. S. City, through its duly authorized representatives, shall have the full and unrestricted right to enter upon the public access and utility easement at any time, for any purpose, including making inspections to determine compliance with the terms, covenants and conditions of this Agreement. In the event that any inspection should reveal a breach of any terms, covenants or conditions herein, City shall give Grantee notice of such breach. Should such breach not be corrected by Grantee within twenty- four (24) hours of receipt of the notice, or within such shorter period of time as deemed necessary by the Building Official for the protection of public health or safety, City may terminate and cancel this Agreement. City owns a manhole and sanitary sewer main located within the public access and utility easement. Grantee agrees that City may enter and utilize the public access and utility easement at any time, including for installing, repairing, replacing or maintaining the City's public facilities or utilities located within the easement, including for emergency repairs or situations. The City shall have no responsibility or liability for any damages related to the encroachment resulting from the City's use of the public access and utility easement; however, the City shall make reasonable efforts to minimize such damage. 9. Upon expiration or termination of this Agreement for any reason whatsoever, Grantee shall, at no expense to City, restore the public access and utility easement 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, which shall include repaving the public access and utility easement with concrete, and Grantee shall remove all barricades, equipment, supplies, materials or other property from said location. Grantee further covenants and agrees that for a period of one (1) year after the termination of this Agreement, Grantee will repair all conditions or damages to the public access and utility easement that has resulted from Grantee's use or occupancy of the public access and utility easement, as determined by the Director of Transportation and Public Works or his designee. Grantee agrees to begin such repairs within thirty (30) days of receipt of notice from the Director of Transportation and Public Works or his designee. All repairs shall be performed in an expeditious and workmanlike manner and shall comply with all applicable laws, code, ordinances and City specifications. In the event that Grantee fails to comply with the covenants herein contained with respect to such removal or restoration, the City shall have the right to withhold all certificates of occupancy requested by Grantee, remove or dispose of any barricades, TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY equipment, supplies, materials or other property and repair any conditions which in the opinion of the City are necessary to bring the public access and utility easement to the condition prescribed herein, and City shall not be responsible for trespass or any other damage or liability in connection with such removal or restoration. Grantee shall reimburse City for the cost and expense of such removal and/or repairs immediately following billing for same by City. Nothing herein shall be construed as a waiver by City to enforce penal sanctions prescribed by the Code of the City of Fort Worth and the laws of the State of Texas for Grantee's continued encroachment upon the public access and utility easement following the expiration or termination of this Agreement. 10. If the governing body of City, to wit, its City Council, shall at any time during the term hereof determine in its sole discretion to use or cause or permit to be used for any public purpose the said encroached portion of the public access and utility easement, then this Agreement shall be automatically cancelled and terminated. II. Grantee 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 encroachments and uses. 12. Grantee 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. Grantee covenants and agrees that it shall exercise all rights and privileges granted hereunder as an independent contractor, and not as an officer, agent, servant or employee of City; that Grantee shall have exclusive control of and the exclusive right to control the details of its operations and activities on said described public property 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; that the doctrine of respondeat superior shall not apply as between City and Grantee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Grantee. 14. GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY 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 HIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE MAINTENANCE, OCCUPANCY, USE EXISTENCE OR LOCATION OF SAID 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 CITY; AND GRANTEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FOR SUCH CLAIMS OR SUITS. GRANTEE SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ALL INJURY OR DAMAGE TO CITY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH ANY ALL ACTS OR OMISSIONS OF GRANTEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES OR TRESPASSERS. 15. Grantee 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 the public access and utility easement as located and described in Exhibit "A". The amounts of such insurance shall not be less than Property damage, per occurrence $200,000.00 Bodily injury, per person $300,000.00 Bodily injury or death, per occurrence $500,000.00 With the understanding of and agreement by Grantee that such insurance amounts shall be revised upward at City's option and that Grantee shall so revise such amount immediately following notice to Grantee of such requirement. Such insurance policy shall provide that it cannot be cancelled or amended without at least thirty (30) days prior written notice to the Building Official of the City of Fort Worth. A copy of such Certificate of Insurance is attached hereto as Exhibit `B" and incorporated herein by reference. Grantee 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 restoration of the public access and utility easement. All insurance coverage required herein shall include coverage of all Grantee's contractors. TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY 16. Grantee covenants and agrees that it will not assign all or any of its rights, privileges or duties under this Agreement without prior written approval of City, and any attempted assignment without such prior written approval shall be void. 17. This Agreement shall be binding upon the parties hereto, their successors and assigns. 18. Should any action, whether real or asserted, at law or in equity, arise out of the terms and conditions of this Agreement or out of the use and occupancy of the public access and utility easement as permitted hereunder, venue for said action shall be in Tarrant County, Texas. 19. In any action brought by City for the enforcement of the obligations of Grantee, City shall be entitled to recover interested and reasonable attorney's fees. TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY EXECUTED this day of , 2022_ GRANTOR: GRANTEE City of Fort Worth UG Magnolia LP By. By. Allison Gray,Assistant Development -Name: Sameer Walvekar Services Director/Building Official Title: Authorized Representative Date: Sep 26, 2022 Date: 9/22/2022 APPROVED TO FORM AND LEGALITY: r Thomas R. Hansen Assistant City Attorney No M&C Required Form 1295: N/A Sep 26, 2022 Jan net[e S.Goodall(5 p 29,2022 14:31 CDT) ]anisette Goodall City Secretary Date: Sep 29, 2022 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. .t Ah-ri'&oN,6hA4�0"6 Malt Tilly on beha of(Sep 26,2022 10,3 C Ty Janie S. Morales Development Services Date: Sep 26, 2022 OFFICIAL RECORD TEMPORARY ENCROACHMENT AGREEMENT CITY SECRETARY FOR USE OF PUBLIC PROPERTY FT. WORTH, TX ***THIS PAGE FOR CITY OF FORT1 ' OFFICE USE 1 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 Allison Gray, 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 Fart Worth, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 26th day of Sepembir , 2022 Wend L. digitally signed by WendyL. ra� wENDY L BEAR05LEE y Beardslee $ �� Notary Public ❑ate:2022.09.26 14S7:50 t * STATE OF TEXAS Beardslee -0540 y Notary I.D. 13323779-3 Notary Public in and for the State of Texas �OF M Comm.Exp.July 28, 2025 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY STA TE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appears Sameer Walvekar known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledge to me that he/she executed the sume for the purposes and consideration therein express, as the act and deed of uG Magnolia LP and in the capacity therein stated GIVEN UNDER MY HAND AND SEAL OF OFFICE this 22 day of 5eatembe' , 2022 . .� A P Sameer Walvekarpu ..:...0ly''�r,` 1151a.11x� GfJ�-ate. Afant a Authorized Representative rrrr�rwn►►► Title Notary Public in and for The State of Texas OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY EXHIBIT A DEPICTION AND DESCRIPTION OF THE ENCROACHMENT TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY I • I r j �m 'm � o� a� I I 4 Z i Pn 1 � I I I ------------- SOUTH AOAMIS STREET f j -------- r ; s it r ,n �� •aR y � �� r I I I I I _ I E r 9- !i f _�-- __-- - -----E _---_ PURZ ALLEY _.. II El LLLL1111 1 E WASHINGTON AVENUE c T e �wx _ _ MAGNOLIA HIGHLINE Q rF OA R T E C T S APARTMENTS IN FORT WORTH,TEXAS FOR �� ��� � ;s 1cc URBAN GENESIS LLC � - w N � O o � rt nNi 19 N fD � N � wl � � .per � -yy -- .• -- �- - L G h 3 m MEN D 0 N f `A �. ir f — 3 r7 F r 3 'C 1 O - -n 1Ri O r� y q ? O �' i� y• ..a w . Lam} N �. rr A o w w Al N tn n � i EXHIBIT B INSURANCE TEMPORARY ENCROACHMENT AGREEMENT FOR USE OF PUBLIC PROPERTY