HomeMy WebLinkAboutContract 48862R'EC�NED
I�AR 1 `� '��11
Cl ��SEGRETA��
CITY SECRETA�t�' �_
CONTRACT N0. � / �
RIGHT OF WAY
ENCROACHMENT AGREEMENT
(COAIiLIERCIAL)
THIS AGREEMENT is made and entered into by and between the City of Fort
Worth, a home rule municipal corporation of Tar��ant County, Texas ("City"), acting
herein by and through its duly authorized City Manager, its duly authorized Assistant
City Manager or Planning and Development Department Director, and Sundance Square
Partners, a Texas limited partner•ship "Licensee", acting herein by and through its duly
authorized managing partner the owner of the real property located at 301 Main Street,
Fort Worth, Texas 76102 ("Property").
RECITALS
WHEREAS, Licensee is the owner of certain real property situated in the City of
Fort Worth, Tarrant County, Texas, more particularly described in the attached Legal
Description of the Property; and "
WHEREAS, the City ha��a street, alley, sidewalk, and/or other public right-of-
way (individually or collective�y, the "Public Right-of-Way") adjacent to the Property as
shown on the map attache � this Agr•eement as Exhibit "A" and incoiporated herein for
all puiposes; and
WHEREAS,� ;�,icensee desires to construct/place and maintain certain
impi•ovements which will encroach onto the Public Right-of-Way; and
WHEREAS, City will allow the encroachment under the terms and conditions as
set forth in this Agreement to accommodate the needs of the Licensee,
NOW, THE�tEFORE, the City and Licensee agree as follows:
�
AGREEMENT
1.
City, in consideration of the payment by Licensee of the fee set out below and
covenants and agreeinents hereinafter contained, to be kept and performed by Licensee,
hei•eby grants permission to Licensee to encroach upon, use and/or occupy portions of the
space under, on, and/ar above the City's Public Right-of-Way to construct/install and/or
allow to remain, certain improvements for the puipose of the installation of building
canopy on East 2nd Street side of building to match existing building canopy (the
"Improvements") as described in and at the location shown on Exhibit "A" but only to
the extent shown thereon. Upon completion of the Improvements, Licensee agrees to be
responsible for maintaining the Improvements. Licensee shall not expand or otherwise
cause the Improvements to further infringe in or on City's Public Right-of-Way beyond
what is specifically described in the Exhibit(s) attached hereto.
2015 ROW Encroachment Agreement -Commercial
Wateis Restaurant — Canopy ROW Agreement
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rev. 02/2015
2.
All construction, maintenance and operation in connection with such
Improvements, use and occupancy shall be performed in strict compliance with this
Agreement and the City's Charter, Ordinances and Codes, and in accordance with the
directions of the City's Director of Transportation and Public Worlcs, or his or her duly
authorized representative. Licensee shall submit all plans and specifications to the
applicable Director or his or her duly authorized representative prior to the construction
of the Improvements. Licensee shall not commence construction of the Improvements
until receiving written approval by the Director, but such approval shall not relieve
Licensee of responsibility and liability for concept, design and computation in the
preparation of such plans and specifications.
3.
Upon completion of the construction and installation of the Improvements, there
shall be no other encroachments in, under, on or above the surface area of the Public
Right-of-Way, except as described herein and depicted on 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
any affected utility companies and the appropriate agencies of the State of Texas and its
political subdivisions. In the event that any installation, reinstallation, relocation or
repair of any existing ot• future utility or improvements owned by, constructed by or on
behalf of the public or at p.ublic 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 in the reasonable
discretion of the Director of Transportation and Public Works, or his or her duly
authorized representative.
5.
Upon prior written notice to Licensee, except in the case of an emergency,
Licensee agrees that City may enter and utilize the referenced areas at any time for the
puipose of installing, repairing, replacing, or maintaining improvements to its public
facilities or utilities necessary for the health, safety and welfare of the public or for any
other public purpose. City shall bear no responsibility or liability for any damage or
disruption or other adverse consequences resulting from the Improvements installed by
Licensee, but City will make reasonable efforts to minimize such damage. 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
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made more costly by virtue of the construction, maintenance or existence of the
Improvments and use, Licensee shall pay to City an additional amount equal to such
additional cost as reasonably determined by the Director of Transportation and Public
Works or the Director of the Water Depat�tment, or said Director's duly authorized
representative.
6.
Licensee agrees to pay to City at the time this Agreement is requested an
application fee of $325.00 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 a fee in the amount of $.56 per square/linear foot of the encroachment area
upon execution of this Agreement and annually thereafter.
7.
The term of this Agreement shall be for 30 years commencing on the date this
Agreement is executed by City. However, this Agreement shall terminate upon
Licensee's non-compliance with any of the terms of this Agreement. City shall notify
Licensee in writing of the non-compliance, and if not cured within 30 days, this
Agreement shall be deemed terminated unless such non-compliance is not susceptible to
cure within 30 days, in which case this Agreement shall be deemed terminated in the
event that Licensee fails to commence and talce such steps as are necessary to remedy the
non-compliance within 30 days after written notice specifying the same, or having so
commenced, thereafter fails to proceed diligently and with continuity to remedy same.
��
Upon termination of this Agreement, Licensee shall at no expense to City remove
the Improvements encroaching into the Public Right-of-Way, and restore the Public
Right-of-Way to a condition acceptable to the Director of Transportation and Public
Works, or his or her duly authorized representative, in accordance with then-existing City
specifications. It is understood and agreed by Licensee that if this Agreement terminates
and Licensee fails to remove the Improvements and restore the Public Right-of-Way,
Owner hereby gives City permission to remove the Improvements along with any
supporting structures, restore the Public Right-of-Way, and assess a lien on the Property
for the costs expended by the City in taking such actions.
�
It is further understood and agreed between the parties hereto that the Public
Right-of-Way to be used and encroached upon as described herein, is 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 Texas
Legislature; and that City cannot contract away its duty and its legislative power to
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control the Public Right-of-Way for the use and beneiit of the public. It is accordingly
agreed that if the governing body of City may at any time during the term hereof
detei�rnine in its sole discretion to use or cause or permit the Public Right-of-Way to be
used for any other public puipose, 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, that this
Agreement shall terminate upon 60 days' written notice to Licensee. In the event this
Agreement is terminated under this Section 9, Licensee shall perform the obligations
regarding removing the Improvements and restoring the Public Right-of-Way described
in Section 8.
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 any
property in which a third party may have an interest. Licensee agrees that it will obtain
all necessary permissions 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 the Improvements, 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.
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 ofiicers, agents,
servants, employees, contractors and subcontractors, and nothing herein shall be
construed as creating a partnership or joint enterprise between City and Licensee.
14.
2015 ROW Encroachment Agreement -Commercial Page 4 of 12
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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 HIND OR CHARACTER,
ARISING OUT OF OR IN CONNECTION WITH, THE CONSTRUCTION,
MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF THE
IMPROVEMENTS 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,
ELEC�ED OFFICIALS, OR INVITEES OF THE CITY; AND LICENSEE
I�EREBI' ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH
CI,AIMS 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 IMPROVEMENTS AND ANY AND ALL ACTS OR
OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES,
INVITEES, OR TRESPASSERS.
15.
While this Agreement is in effect, Licensee agrees to furnish City with a
Cer-tificate of Insurance naming City as certificate holder, as proof that it has secured and
paid for a policy of public liability insurance covering a11 public risks related to the
proposed use and occupancy of public property as described or depicted in Exhibit "A".
The amounts of such insurance shall be not less than
$1,000,000 Commercial General Liability
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 promptly
following notice to Licensee of such requirement. Such insurance policy shall not be
canceled or amended without at least 30 days prior written notice to the Building Ofiicial
of the City of Fort Worth. A copy of such Cet�tificate of Insurance is attached as Exhibit
"B" and incorporated herein for all .purposes. Licensee agrees to submit a similar
Certiiicate 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 Public Right-of-Way. All insurance coverage required herein shall include coverage
of all Licensees' contractors and subcontractors.
2015 ROW Encroachment Agreement -Commercial Page 5 of 12
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16.
Licensee agrees to deposit with the City when this Agreement is executed a
sufficient sum of money to be used to pay the fees to record this Agreement in the Real
Property Records of Tarrant County, Texas. After being recorded, the original shall be
returned to the City Secretary of the City of Fort Worth.
17.
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 attorney's fees.
18.
Licensee covenants and agrees that it will not assign all or any of its rights,
privileges or duties under this Agreement without the prior written approval of the City,
andany attempted assignment without such written approval shall be void. In the event
Licensee conveys the Property, Licensee may assign all of its rights and obligations under
this Agreement to the new owner of 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 assignment 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 60 days of such foreclosure or assignment and
assumes all of Licensees' 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.
THE PARTIES AGREE THAT THE DUTIES AND OBLIGATIONS
CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
20.
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.
21.
This Agreement shall be binding upon the parties hereto, their successors and
assigns.
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[SIGNATURES APPEAR ON FOLLOWING PAGE]
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T�IIS AGREEMENT may be executed in multiple counteiparts, each of which
shall be considered an original, but all of which shall constitute one instrument.
City:
CITY OF FORT WORTH,
By:
RANDLE HARV1/OOD
DIRECTOR
PLANNING&DEVELOPMEI�i
DEPARTMENT
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Date: � 20�
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Licensee:
SUNDANCE SQUARE PARTNERS, L.P.
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Date: `� — � �� .. �� � � �1-F
Approved As To Form and Legality
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Assistant City Attorney
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�9i'Y ��C�ETA�'�
FY. �����'l�J� T�
2015 ROW Encroaclunent Agreement -Commercial Page 8 of 12
Waters Restaurant — Canopy ROW Agreement rev. 02/2015
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.
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me of Employee
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STATE OF TEXAS §
COUNTY OF TARRANT §
knowled ed before me on �J , 201
This instrument was ac g
by Randall Harwood, Director of the Plannin d Development Department of the Cit
of Fort Worth, on behalf the City of Fort Wo�_ �A ��,
=�Y�� Notary Public, Siate of Tez:.
N My Commisslon Expires
;rE�<<�::'�� April 26, 2017
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After Recording Return to:
Cassandra Foreman
Planning and Development Department
1000 Throcicmorton Street
Foi-t Worth TX, 76102
Notary Public, State of Texas
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2015 ROW Encroachment Agreement -Commercial Page 9 of 12
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STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and far the State of
Texas, on this day personally appeai•ed Johnny K. Campbell, Vice President, lcnown 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 Sundance Square Partners, L.P., a Texas
limited partnership, and in the capacity therein stated.
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GIVEN iTNDER MY HAND AND SEAL OF OFFICE this �� day of
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��� r N�ry PubAc, State af Texas
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�� �� , My Commission Facpfres
���%�•.; h' pWVERABER 16, 2017
2015 ROW Encroaclunent Agreement -Commercial
Waters Restaurant— Canopy ROW Agreement
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Notary Public in and for the
State of Texas
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Page 10 of 12
rev. 02/2015
LEGAL DESCRIPTION OF THE PROPERTY
Street level on Block 42, Original City Addition to the City of Fort Worth, Tarrant
County, Texas, located at 301 Main Street, Fort Worth, Texas, 76102
2015 ROW Encroachment Agreement -Commercial Page i l of 12
Waters Restaurant — Canopy ROW Agreement rev. 02/2015
EXI3IBIT "A"
Location and Description of Encroachment and Improvements
Waters Restaurant, 301 Main Street, Fort Worth, Texas, 76102, Tarrant County,
installation of building canopy on East 2°� Street side of building to match existing building
canopy.
2015 ROW Encroachment Agreement -Commercial Page 12 of 12
Waters Restaurant — Canopy ROW Agreement rev. 02/2015
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�'� � CERTIFICATE OF LIABILITY INSURANCE ( DATE�(9M�/D�D6 Y,
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 have ADDITIONAL INSURED provisions or 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).
aon Risk services southwest, inc.
Fort worth Tx office
301 Commerce street
Suite 2101
Fort worth TX 76102 uSA
Sundance Square Partners, �.P.
201 Main Street, Suite 2700
Fort warth TX 76102 USA
(817) 810-4000
INSURER(S) AFFORDING COVERAGE
INSURER A: ZUt'l Cil Afi12t'l CdYI It15 CO
INSURER B:
INSURER Q
INSURER D:
INSURER E:
INSURER F:
<817) 339-2019
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COVERAGES CERTIFICATE NUMBER: 570063547202 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. Limits shown are as requested
LTR TYPE OF WSURANCE WSD WVD POLICY NUMBER MMI�DIYYYY MMIDDlYYYY � LIMITS
A� X COMMERCIALGENERALLIA8ILIN CP03981525-13 .. EACH OCCURRENCE S1�000,000
CLAIMS-MADE X❑ OCCUR � PREM SES�Ea occu ence $1, 000, 000
X Per Loc Agg $1 Omil Cap . MED EXP (Any one person) � $ 5, 000
PERSONAL&ADVINJURY S1�OOO,OOO o
GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE � S2 � 000, OOO �
POLICY ❑ PR� �X LOC PRODUCTS-COMP/OPAGG $2,000�000 �
JECT
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COM8INED SINGLE LIMIT `�
AUTOMOBILE LIABILITY
Ea accident „
ANY AUTO BODILY INJURY ( Per person) Z
OWNED SCHEDULED BODILY INJURY (Per accident) Y
AUTOS ONLY AUTOS pROPERTY DAMAGE �
NON-OWNED v
HIRED AUTOS Pef accident L=
ONLY AUTOS ONLY
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UMBRELLA LIAB OCCUR EACH OCCURRENCE V
EXCESS 11A8 CLAIMS-MAOE AGGREGATE
DED RETENTION
WORKERS COMPENSATION AND
EMPLOYERS' LIABILITY Y� N STATUTE E�R
ANY PROPRIETOR / PARTNER / EXECUTIVE E.L. EACH ACCI�ENT
OFFICERlMEMBER EXCLUDED? ❑ N I A
(Mandatory in NH) E.L. DISEASE-EA EMPLOYEE
Ifyes, describe under _
DESCRIPTION OF OPERATIONS beluw E.L. DISEASE-POLICY LIMIT _
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DESCRIPTION OF OPERA710NS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) �
RE: ROW Encroachment for Waters Restaurant, 301 Main Street, Fort Worth, TX
certificate Holder is included as Additional Insured as required by written contract, but limited to the operations of the �
znsured under said contract, per the applicable endorsement with respect to the General Liability policy. �
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CERTIFICATE HOLDER CANCELLATION �
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCEILED BEFORE THE �
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