HomeMy WebLinkAboutContract 47851 Rr
CONTRACT W.
RECESSED PAVEMENT AREA JOINT USE AGREEMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
THIS RECESSED PAVEMENT AREA JOINT USE AGREEMENT ("Agreement") is
made and entered into by and between the City of Fort Worth, a municipal corporation of Tarrant
County, Texas, hereinafter referred to as the "City," acting herein by and through its duly
authorized Assistant City Manager and Stockyards Hotel, LLC, a Texas limited liability
company,hereinafter referred to as "Grantee."
WITNESSETH:
WHEREAS, Grantee owns the real property and operates the Stockyards Hotel at 109 E.
Exchange Ave., Fort Worth, Texas 76104 (the "Properly") which is located at the heart of the
Fort Worth Stockyards National Historic District (the "Stockyards District"); and
WHEREAS, The Stockyards District was established in 1976 to preserve the Stockyards
Hotel and all other structures located in the Stockyards District so that the western history legacy
of Fort Worth that exists in those structures and that was created by pioneering settlers, cowboys,
cattle ranchers and Chisholm Trail cattle drives would never be lost; and
WHEREAS, The Stockyards Hotel is unique in Fort Worth, being the original cattlemen's
hotel built in 1907 and expanded in 1913 serving the Fort Worth Stockyards and the Live Stock
Exchange, and the Stockyards Hotel's continued preservation and operation is critical to the
future of the Stockyards District; and
WHEREAS, E. Exchange Avenue is the location where the City's Longhorn Herd are
driven twice each day, cowboys ride horses, policemen ride horses, visitors ride in horse drawn
carriages or are photographed sitting on Longhorn Steers or gather to walk about enjoying the
atmosphere that is slower and stress free, much like the days gone by, and the City desires to
continue to preserve this unique atmosphere because it is critical to the continued attraction of
the City's many tourists and the resulting financial benefits and it is a necessary element to the
historical preservation of the historic west; and
WHEREAS, The Stockyards District is the most popular tourist attraction in the City of
Fort Worth, as well as one of Texas' most popular tourist destinations, attracting people from all
over the world seeking the atmosphere of the historic west and to authentically experience the
meaning of the Fort Worth motto, "Where the West Begins"; and
WHEREAS, In order to ensure that the Stockyards District, a Fort Worth treasure, is
preserved for generations to come the City has a desire to preserve and promote the Stockyards
OFFICIAL RECORD
Agreement CITY SECRETARY Page 1
Execution Copy 10/26/15
FT.WORTH,TX ��
District, which is in the public's best interest, by ensuring that the Stockyards Hotel can continue
to operate and make its critical contribution to the success of this unique historic district; and
WHEREAS, Because the Stockyards Hotel depends solely on valet parking in order to
function and operate, and without it, would cease operations, and because it is in the public's
best interest to preserve and promote the Stockyards Hotel so that the Stockyards District can be
preserved and promoted, it is in the public's best interest to insure that the Stockyards Hotel has
sufficient valet parking available; and
WHEREAS, The Stockyards Hotel was remodeled in 1984 to a style befitting the former
glory days of Texas cattlemen and consistent with Fort Worth's motto "Where the West Begins"
and since this remodel was completed, a paved area, outside of the traffic lanes and defined by a
cut out in the sidewalk on E. Exchange Ave. in front of the Stockyards Hotel, which area is
depicted on Exhibit "A" (the "Recessed Pavement Area"), has been continually used by the
Stockyards Hotel as a necessary part of its valet parking operation; and
WHEREAS, Although the Recessed Pavement Area is within the right-of-way which
includes E. Exchange Ave., the Stockyards Hotel's use of it does not interfere with the public's
use of the traffic lanes in the street; and
WHEREAS, In addition to the use of the Recessed Pavement Area, the Stockyards Hotel
has also been consistently granted by the City valet parking permits to use a portion of the traffic
lane on E. Exchange Ave. and a portion on N. Main St. for valet parking operations, (the "Traffic
Lane Valet Parking Areas"), which are necessary to provide adequate valet parking operations
for the Stockyards Hotel; and
WHEREAS, The City of Fort Worth and Grantee desire to enter into this Agreement to
provide Grantee use of the Recessed Pavement Area so that Grantee can use it related to
operations and maintenance of the Stockyards Hotel, including but not limited to parking,
operating valet parking operations and loading and unloading operations in order to continue to
operate and be a significant contributor to the preservation and promotion of the City of Fort
Worth, the Fort Worth Stockyards National Historic District, and "Where the West Begins, all of
which is in the public's best interest; and
WHEREAS, Texas Transportation Code Chapter 316 allows the City to prescribe the use
of a portion of a municipal street, right-of-way or sidewalk for public conveniences and
amenities for the abutting and underlying fee owner, which is Grantee, and for a private purpose
if the use does not interfere with the public use of the street or sidewalk or create a dangerous
condition on the street or sidewalk; and
WHEREAS, the City has determined that providing Grantee with the use of the Recessed
Pavement Area is: (i) in the best interest of the public because it will ensure that The Stockyards
Hotel can continue to operate and preserve and promote the Stockyard's District and will provide
a public convenience and amenity for the visitors to and public use of the Stockyards District, all
of which is a greater public interest than use of the Recessed Pavement Area; and (ii) will not
Agreement Page 2
Execution Copy 10/26/15
interfere with the public use of the traffic lanes of the street or pedestrian use of the sidewalk or
create a dangerous condition on the street or sidewalk.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, including the, mutual covenants contained herein, the parties
hereto hereby agree as follows:
A. Recessed Pavement Area.
1. The City hereby grants to Grantee permission to use the Recessed Pavement Area
for Grantee's purposes solely related to operations and maintenance of the
Stockyards Hotel, including but not limited to parking, operating valet parking
operations and loading and unloading operations during the Term and each
Renewal Term. Grantee shall have exclusive use of the Recessed Pavement Area
so long as the use does not unreasonably interfere with City's rights and
obligations to the Recessed Pavement Area. The parties agree that the Recessed
Pavement Area is exempt from the Valet Parking Ordinance existing at the
execution of this Agreement. Grantee shall have the right to determine how it
uses the Recessed Pavement Area, so long as it does not interfere with City's
rights to the Recessed Pavement Area, and there shall be no time limits imposed
on Grantee's use as it relates to how long Grantee allows a vehicle, bus, carriage,
horse, trailer, truck, or other occupant to park in or occupy the Recessed
Pavement Area. City acknowledges that Grantee's activities, if within the scope
of permission and conforming to the terms and conditions of this Agreement, do
not, as of the date of the City's execution of this permission set forth below,
unreasonably interfere with City's rights and obligations to the Recessed
Pavement Area. City will coordinate with Grantee for any access or use that may
affect Grantee's use of the Recessed Pavement Area. Nothing in this Agreement
shall be construed to prevent Grantee from continuing to obtain a valet parking
permit issued by the City to operate valet parking operations in the Traffic Lane
Valet Parking Areas or other locations within the City's public rights-of-way and
that are not licensed for use under separate agreement, all of which shall remain
subject to the Valet Parking Ordinance.
2. City may enter and utilize the Recessed Pavement Area at any time for the
purpose of installing or maintaining improvements necessary for the health, safety
and welfare of the public. In this regard, Grantee understands and agrees that City
shall bear no responsibility or liability for damage or disruption of improvements
installed by Grantee or its successors, but City will make reasonable efforts to
minimize such damage.
3. Grantee understands and agrees that the granting of permission to use the
Recessed Pavement Area hereunder is not meant to convey to Grantee any right to
use or occupy property in which a third party may have an interest, and Grantee
agrees that it will obtain all necessary permission before occupying such property.
Agreement Page 3
Execution Copy 10/26/15
B. Payment.
Grantee agrees to pay to City at the time this Agreement is executed an amount of$8,037.30 for
the use of the Recessed Pavement Area and shall pay the same amount annually thereafter,
payable on the anniversary date of the execution of this Agreement for each year of use (the
"Fee"
C. Term and Termination.
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 (the "Term"). This Agreement may be
renewed upon written notice of either party for additional periods of thirty (30) years each at the
expiration of the then Term or Renewal Term (each a "Renewal Term"). This Agreement may
be terminated by either party for breach of this Agreement by providing the other party written
notice identifying the breach and providing thirty (30) days to cure the breach. After thirty (30)
days, if the breach is not cured, the non-breaching party may immediately terminate this
Agreement. This Agreement shall terminate thirty days after Grantee permanently ceases to
operate a hotel on the Property. If Grantee temporarily ceases hotel operations for any reason,
including but not limited to construction, remodeling, repairs, damages caused by fire, wind,
storm, flood, terrorism or other causes, but intends to reopen as a hotel, then Grantee shall not be
considered to have permanently ceased hotel operations and this Agreement shall not terminate.
It is further understood and agreed that the Recessed Pavement Area, is held by City as trustee
for the public; that City exercises such powers over the Recessed Pavement Area 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 any public right-of-way. If at
any time during the Term or any Renewal Term if the City determines in its sole but reasonable
discretion to use or cause or permit the Recessed Pavement Area to be used for any other public
purpose, including but not 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, due to the fact that no reasonable alternative
exists to locate such items in an area outside the Recessed Pavement Area, and either party
determines that such use and Grantee's use of the Recessed Pavement Area are in conflict, ether
party may terminate or abate with a reduction in the fee paid during such abatement, this
Agreement by providing notice to the other. If this Agreement is terminated on a day other than
the anniversary date, then any portion of the Fee paid for the remaining period of the year shall
be refunded to Grantee.
D. Independent Contractor.
Grantee covenants and agrees that it shall operate as an independent contractor as to all rights
and privileges granted hereunder and not as an officer, agent, servant or employee of City and
Grantee 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
Agreement Page 4
Execution Copy 10/26/15
invitee. 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.
E. Indemnification of City.
GRANTEE 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 USES GRANTED
HEREUNDER, TO THE EXTENT CAUSED BY THE NEGLIGENCE OF GRANTEE
OR GRANTEE'S OFFICERS, AGENTS, SERVANTS, EMPLOYEES, OR
CONTRACTORS; AND GRANTEE HEREBY ASSUMES ALL LIABILITY AND
RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. GRANTEE SHALL LIKEWISE
ASSUME ALL LIABIITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY
FOR ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT OF
OR IN CONNECTON WITH ANY AND ALL ACTS OR OMISSIONS OF GRANTEE,
ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, OR LICENSEES IN THE RECESSED PAVEMENT AREA. THE
PARTIES AGREE THAT THE DUTIES AND OBLIGATON CONTAINED IN THIS
PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
F. Certificate of Insurance.
1. While this Agreement is in effect, 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 public property as located and
described in Exhibit "A." The amounts of such insurance shall not be less than
the following:
$1,000,000 Commercial General Liability
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
amounts immediately following notice to Grantee 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 Exhibit `B."
Grantee agrees to submit a similar Certificate of Insurance annually to City on the
anniversary date of the execution of this Agreement.
Agreement Page 5
Execution Copy 10/26/15
2. 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 cleaning and
restoration of the city streets. All insurance coverage required herein shall
include coverage of all Grantee's contractors.
G. Record Recordation.
An original of this Agreement shall be filed with the City's City Secretary's Office.
H. Enforcement Attorneys.
In any action brought by either party for the enforcement of this Agreement, the prevailing party
shall be entitled to recover interest and reasonable attorney's fees.
I. Assignment.
Grantee may assign all or any of its rights, privileges or duties under this Agreement to any
person or entity that is a successor in title to the Property or becomes the owner of the
Stockyards Hotel. Grantee shall provide City thirty (30) days written notice prior to any
assignment. This Agreement shall be binding upon the parties hereto, their successors and
assigns.
J. Compliance with Laws Ordinances, Rules and Regulations.
Grantee agrees to comply with all applicable federal, state and local laws, ordinances, rules and
regulations. If the City notifies Grantee of any violation of such laws, ordinances, rules or
regulations, Grantee shall immediately desist from and correct the violation.
K. Notices.
Notices required pursuant to the provisions of this Agreement shall be conclusively determined
to have been delivered when (1) hand-delivered to the other party, its agents, employees,
servants or representatives, or (2) received by the other party by United States Mail, registered,
return receipt requested, addressed as follows, or such other addresses as may be provided in
writing:
TO THE CITY:
City of Fort Worth
With Copy to the City Attorney
Attn: Jesus J. Chapa, Assistant City Manager
at same address
1000 Throckmorton
Fort Worth TX 76102
Agreement Page 6
Execution Copy 10/26/15
TO GRANTEE:
Stockyards Hotel, LLC
Attn: Robert H. McLean, Manager
109 E. Exchange Ave.
Fort Worth, Texas 76104
With a copy to
Hunter T. McLean
Whitaker Chalk Swindle & Sawyer, PLLC
301 Commerce St.
Suite 3500
Fort Worth, Texas, 76102
L. Governmental Powers.
It is understood and agreed that by execution of this Agreement, the City does not waive or
surrender any of its governmental powers.
M. No Waiver.
The failure of the City or Grantee to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or
Grantee's respective right to insist upon appropriate performance or to assert any such right on
any future occasion.
N. Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State of Texas. If any
action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement,
venue for such action shall lie in state courts located in Tarrant County, Texas or the United
States District Court for the Northern District of Texas, Fort Worth Division.
O. Amendments.
No amendment of this Agreement shall be binding upon a party hereto unless such amendment is
set forth in a written instrument, and duly executed by an authorized representative of each party.
P. Third Party Beneficiaries.
This Agreement is intended for the benefit of the parties hereto and their successors and
permitted assigns only. There are no third party beneficiaries hereof.
Agreement Page 7
Execution Copy 10/26/15
Q. Entirety of Agreement.
This Agreement, including any exhibits attached hereto and any documents incorporated herein
by reference, contains the entire understanding and agreement between the City and Grantee,
their assigns and successors in interest, as to the matters contained herein. Any prior or
contemporaneous oral or written agreement is hereby declared null and void to the extent in
conflict with any provision of this Agreement.
EXECUTED this P1 day of d , 201
CITY GRANTEE
City of Fort Worth Stockyards Hotel, LLC
BY: - V� B
Y•
Jesus J. Chapa Name: Robert H. Mc can
Assistant City Manager Title: Manager
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ATTEST: rj
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6�1���C�
Mary Ka se , 1 Secretar
M&C: - 7
Date:
Approved s To Form and Legality
Jessica SIA
svang
Assistant ity Attorney
Alm
Agreement OFFICIIRECOR]DD page 8
Execution Copy 10/26/15 CITY SFT.W
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 jts\,u J_Chu f)(' , 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 MY HAND AND SEAL OF OFFICE this 27 day of
20 jam.
- C`I
otary Public in and for the
0,0i� LINDA M. NIRRLINGER
' Notory Public,store or Texas State of Texas
"q.: Comm.Explres 02-02-2018
°;,`0 Notary ID 12414474-6
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersi ned authority, a Notary Public in and for the State of Texas,
on this day personally appearedf oloex-1 1A - 'Mc Lccx-u-\ , 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
Sttr_V-*-x �s tib+c , L LC , and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this a day of
OnGbbe-r , 201Ea.
*VERONICA � Notary Public in and for th
* STATE OF TEXAS ry PUNC State of Texas
�' ov My Cwn Exp-Dec.18,2018
Agreement Page 9
Execution Copy 10/26/15
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CERTIFICATE OF INTERESTED PARTIES
FORM 1295
1 of 1
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2016-51260
Stockyards Hotel, LLC
Fort Worth,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 05/06/2016
being filed.
City of Fort Worth Date Acknowledged:
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
00000
Pavement Agreement
Nature of interest
4
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
McLean, Robert Fort Worth,TX United States X
5 Check only if there is NO Interested Party. ❑
6 AFFIDAVIT I swear,or m,under penalty of perjury,that the above disclosure' true and correct.
C
em
ELAINE HUTCHISONNotary Publk�State of TeasCOmm.Expl06-21'2017 Signature of authorized agent of contract business atity
Notary ID 48047.5
A I A Y A P SAL AB V
Sworn to and subscribed before me,by the said R(Dbe C�&4-0 r) this the day of ,
201(C to certify which,witness my hand and seal of office.
@600 11Jc )isrn �lo4�r;a A�ll�
Signature of officer administering oath Printed name of officer administering oath Title of offic r administering oath
i
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.1021
Official
UNCIL END FCIRT''V(JIITI!
CITY'
COUNCIL ACTION: Approved on 5/17/2016
DATE: 5/17/2016 REFERENCE NO.:G-18739 LOG NAME: 20PAVEMENT
AGREEMENT
CODE: G TYPE: NOW PUBLIC CONSENT HEARING: NO
SUBJECT: Authorize Execution of a Recessed Pavement Area Joint Use Agreement with the
Stockyards Hotel, LLC, for Space Located at 109 East Exchange Street in the Amount of
$8,037.30 Annually (COUNCIL DISTRICT 2)
RECOMMENDATION:
It is recommended that the City Council authorize execution of a recessed pavement area joint use
Agreement with Stockyards Hotel, LLC for space located at 109 East Exchange Street, in the amount of
$8,037.30 annually.
DISCUSSION:
The Stockyards Hotel (Hotel) located at 109 East Exchange Street, requested unrestricted use of the
recessed pavement area directly in front of the Hotel within the public right-of-way due to inadequate
parking facilities. Hotel ownership has expressed concern that use of this recessed pavement area is
critical to allow the Hotel to continue operations. The Texas Transportation Code Chapter 316 allows the
City of Fort Worth (City) to prescribe the use of a portion of a municipal street, right-of-way or sidewalk for
public conveniences and amenities for the abutting and underlying fee owner and for a private purpose if
the use does not interfere with the public use of the street or sidewalk or create a dangerous condition on
the street or sidewalk.
Staff recommends that the City and the Hotel enter into a joint use Agreement to provide the Hotel
exclusive use of the recessed pavement area so that it can be used for Hotel operations and maintenance,
including but not limited to parking, valet operations and commercial loading and unloading. The Hotel
agrees to pay the City a sum of$8,037.30 per year for thirty years. The joint use Agreement also includes
thirty year renewal options that may be exercised upon written notice by either party.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that upon approval of the above recommendation,
the Transportation and Public Works Department is responsible for the collection and deposit of funds due
to the City from this Agreement.
Logname: 17ED COMFORWOMEN Page 1 of 2
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year Chartfield 2
54501 1 0208503 4402505 $8,037.30
FROM
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year Chartfield 2
Submitted for City Manager's Office by: Jay Chapa (5804)
Originating Department Head: Douglas W. Wiersig (7801)
Additional Information Contact: Peter Elliott (7977)
ATTACHMENTS
final draft Recessed 10.26.15.pdf
Form 1295 (20PAVEMENT).pdf
Logname: 17ED COMFORWOMEN Page 2 of 2