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HomeMy WebLinkAboutContract 47543 ri CITY SEM"W[A i 7513 CONTRAcT mo. r. 3255A116 j� ' FORTViral?TH o RIGHT OF WAY i ,`>kAFTY ENCROACHMENT AGREEMENT (COMMERCIAL) t' e 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 Planning and Development Department Director, hereinafter referred to as the "City", and L4 URBAN HOTELS FORT WORTH LIMITED PARTNERSHIP, acting herein by and through its duly authorized Executive Vice President, Barry A.N. Bloom hereinafter referred to as "Licensee", Owner of the property located at 601 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, sidewalks and other public rights-of- way, such Improvement(s) are described as follows: Awnings affixed to storefront as more particularly described in Exhibit "A", attached hereto and made a part hereof. 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 purposes. 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 OFFICIAL RECORD 2014 ROW Encroachment Agreement-Commercial I � ECqaage�o�l Y directions of the Director of Transportation and Public Works of City, or his 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 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 2014 ROW Encroachment Agreement-Commercial Page 2 of 11 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 Three Hundred and Twenty-Five Dollars ($325.00). Upon execution of this Agreement and annually thereafter, Licensee agrees to pay a fee in the amount of$.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. 8. 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. 9. 2014 ROW Encroachment Agreement-Commercial Page 3 of 11 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 public right-of-way 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 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 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 permission before occupying such property. 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. 2014 ROW Encroachment Agreement-Commercial Page 4 of I 1 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 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 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, 2014 ROW Encroachment Agreement-Commercial Page 5 of 11 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. 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 2014 ROW Encroachment Agreement-Commercial Page 6 of 11 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 Director of Planning and Development. Any attempted assignment without prior written approval will be void. 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. EXECUTED this day of , 214 . 2014 ROW Encroachment Agreement-Commercial Page 7 of 1 1 City Licensee City of Fort Worth A URBAN HOTELS FORT WORTH LIMITED PARTNERSHIP, a Delaware limited partnership By:IA Urban Hotels Fort Worth GP, LLC a Delaware limited liability company, its general partner By:XHR LP, a Delaware limited partnership, its sole member By:XHR GP,Inc., a Delaware corporation, its general partner By: By: J Ran4Harwoo4lXrector Name:Barry A.N. Bloom Planning and Development Title:Executive Vice President ATTEST: Approved As To Form and Legality ba4u_ City Sec t t °°°° A >` ssistant City Attorney 0 000000 OFFICIAL RECORD CITY SECRETARY 2014 ROW Encroachment Agreement-Commercial FT. WGRTHgPF 8 f 11 2014 ROW Encroachment Agreement-Commercial Page 9 of 11 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. GIVEN UNDER M HAND AND SEAL OF OFFICE this �_day 20 CASSANDRA F. FOREMAN �: Notary Public,state of Texas My Commission Expires April 26, 2017 Notary Public in and for the State of Texas 2014 ROW Encroachment Agreement-Commercial Page 10 of 11 STATE OFXXXAS FLORIDA § ORANGE COUNTY OF TXRRA 1' § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Florida AXE, on this day personally appeared Barry A.N. Bloom, Executive Vice President of XHR GP, Inc., the general partner of XHR LP, the sole member of IA Urban Hotels Fort Worth GP, LLC, the general partner of L4 Urban Hotels Fort Worth Limited Partnership, 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 L4 Urban Hotels Fort Worth Limited Partnership,and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 22nd day of January _' 20 16 . Y P CAROL MCKNIGHT Commission#EE 178724 Expires June 18,2016 BondoThruTroy Fain lnwrance80}3SS7��9 Notary Public in and for e State of 10M Florida 2014 ROW Encroachment Agreement-Commercial Page 11 of 11 I I 0000©©o©eo i I 0 �'•I O O �■ o 11. m • 1...... II �F�f mm ^s;�......_ii_�� �• '�---rte-_" � ill r...... I ;1:: :C. rr �--E.5. _A O O r oa.0`I ' 1 .■■... 1 :1...... IIS 1 iii iii F��� "`1■■■■■■ I I'� � 1....�. 11: ■ II Now o. I�'�� j iiiiiii-.ll ■' i iii—Nmi 11' ,:1 0.10. .II• 1.��... 11--' .10 n11�■� ?1C��ti� ■ ■ I...o. 11� r r 0..�■ r is■■■■■■ 11-■` I iii iii t' J i r 0..■. ..IIS 1....or 11 :1...0■<IIS .1 0.�.. I�O� ;� r■■■■0 If I0..0law 1 0■I.v • ::1...0. 11 � O W Z N SVX3i 'H1?JOM i3 u is NIHW ST9 V a 3NOiSNJH3H-JGD w i SDNINMa xccDIVR NAN�1113 w [— °< a W 0:O 3u5 x m u O `A a a ° < _ fy.. C4 F z 3 v 3 a le Lr lh z¢ c =y C U r _ a Z N o UUUUUUUUGUUUUUU ,a Q� 3z o wcxF=Y� ca�axxx `do�`dc�do`�JOV�V CVyZ p LL¢ y O0000c z o 0 00000c000�z��N� �cZv � oCw � aiaaa�a aaa iaw.aw.aa r-r-NtiHi-- Oagay I U<m��I��<< � 333333333 � K- � 6 x 5 2 E UU Ua' <^ � ------------ 12\, o d "' u � �T x ¢ l << 3a oz 22 3 � `ry _ A�® CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDDlYYYY) 1/8/2016 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 CONTACT NAME: Arthur J.Gallagher&Co. PHONE 415-536-8617 FAX 415-536-8499 Insurance Brokers of CA,Inc. LIC#0726293 A/(' N-.E 1255 Battery Street,Suite 450 E-MAIL San Francisco CA 94111 gURERFORDING COVERAGE NAIC# INSURER A:TraveCasualt Co of A 25674INSURED INSURERB;Llbertre Insurance Coma 23035CBC Restaurant Corp, dba: Corner Bakery Cafe INSURERc:Navl nce Com an 42307 12700 Park Central,Suite 1300 Dallas,TX 75251 INSURER D: INSURER E, INSURER F: COVERAGES CERTIFICATE NUMBER: 1151921 151 REVISION NUMBER: 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. ILTR TYPE OF INSURANCE INSD VVD POLICYNUMBER MM/LDIDIYEYYY MMIDDYEXP /YYYY LIMITS B I X I COMMERCIAL GENERAL LIABILITY TB2-661-066565.025 2/2/2015 2/2/2016 EACH OCCURRENCE $1,000,000 CLAIMS-MADE XO OCCUR DAMAGE TO RENTED S E PREMISEa occurrence $1,000,000 X Host Liquor MED EXP(Any one person) $5,000 PERSONAL&ADV INJURY $1,000,000 GENT AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 X POLICY ]PRO JECT I-X']LOC PRODUCTS-COMPIOPAGG $2,000,000 OTHER: Is B AUTOMOBILE LIABILITY AS2-661-066565-015 2/2/2015 2/2/2016 Eaaccde*person) $ $1,000,ODO X ANY AUTO BODILY IN $ALL OWNED SCHEDULED AUTOS AUTOS BODILY IN $HIRED AUTOS NON-OWNED AUTOS $C X UMBRELLALIAB LX OCCUR LA15EXC7936671V 10/1/2015 10/1/2016 EACH OCC10,000,000X EXCESSLIAB CLAIMS-MADE AGGREGA10,000,000 DED RETENTION$ Is A WORKERS COMPENSATION TC2JUB-6077C467-15 2/2/2015 2/2/2016 AND EMPLOYERS'LIABILITY Y/N X PER OERH ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? NIA E.L.EACH ACCIDENT $1,000,000 (Mandatory in If yes,describe under E.L.DISEASE-EA EMPLOYE $1,000,000 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Corner Bakery Store#127 Blackstone,615 Main Street, Ft Worth,TX. Xenia Hotels&Resorts, Inc.and Owner are endorsed as Additional Insured on all liability policies and such insurance will be endorsed as primary and non-contributory with any other insurance available to the Management Company and Owner. See attached endorsements. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN IA Urban Hotels Fort Worth TRS Limited Partnership ACCORDANCE WITH THE POLICY PROVISIONS. 2901 Butterfield Road Oak Brook IL 60523 USA AUTHORIZED REPRESENTATIVE ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD