HomeMy WebLinkAboutContract 49849 CITY SECRETARY00q
CONTRACT NO._
RIGHT OF WAY
ENCROACHMENT AGREEMENT
(COMMERCIAL)
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 herein
by and through its duly authorized City Manager, its duly authorized Assistant City
Manager or Planning and Development Department Director, and
Nichols Trinity, LLC [full legal name],a Texas LLC _[type of entity]
"Licensee",acting herein by and through its duly authorized President [title],
the owner of the real property located at 301 Nichols 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 has a street, alley, sidewalk, and/or other public right-of-
way (individually or collectively, the "Public Right-of-Way") adjacent to the Property as
shown on the map attached to this Agreement as Exhibit"A" and incorporated herein for
all purposes; and
WHEREAS, Licensee desires to construct/place and maintain certain
improvements 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, THEREFORE, 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 agreements hereinafter contained, to be kept and performed by Licensee,
p hereby grants permission to Licensee to encroach upon, use and/or occupy portions of the
space under, on, and/or above the City's Public Right-of-Way to construct/install and/or
�? allow to remain, certain improvements for the purpose of an awning over the front
n entrance and 3 bicycle racks located on the city sidewalk. (whether one or more,the
ca
_ n `Improvements") as described in and at the location shown on Exhibit"A" but only to
he extent shown thereon. Upon completion of the Improvements, Licensee agrees to be
�3
xesponsible 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
2015 ROW Encroachment Agreement-Commercial Page 1 of 12
Nichols Trinity,LLC—301 Nichols Street rev.02/2015
what is specifically described in the Exhibit(s) attached hereto.
2015 ROW Encroachment Agreement-Commercial Page 2 of 12
g rev.02/2015
Nichols Trinity,LLC—301 Nichols Street
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 Works, 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 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 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 purpose
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
2015 ROW Encroachment Agreement-Commercial Page 3 of 12
Nichols Trinity,LLC—301 Nichols Street rev.02/2015
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 Department, 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 take 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.
8.
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.
9.
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
of2
1
2015 ROW Encroachment Agreement-Commercial Page rev.4 4 of 1 5
Nichols Trinity,LLC—301 Nichols Street
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 Public Right-of-Way 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, 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 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.
of2
1
2015 ROW Encroachment Agreement-Commercial Page rev.5 5 of 1 5
Nichols Trinity,LLC—301 Nichols Street
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 KIND 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,
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 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 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 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 Official
of the City of Fort Worth. A copy of such Certificate of Insurance is attached as Exhibit
"B" and incorporated herein for all purposes. 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 Public Right-of-Way. All insurance coverage required herein shall include coverage of
all Licensees' contractors and subcontractors.
12
2015 ROW Encroachment Agreement-Commercial Page 6 rev. 02/2015of of 12
Nichols Trinity,LLC—301 Nichols Street
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.
of2
1
2015 ROW Encroachment Agreement-Commercial Page rev.7 7 of 1 5
Nichols Trinity,LLC—301 Nichols Street
[SIGNATURES APPEAR ON FOLLOWING PAGE]
of2
1
2015 ROW Encroachment Agreement-Commercial Page rev.8 8 of 1 5
Nichols Trinity,LLC—301 Nichols Street
THIS AGREEMENT may be executed in multiple counterparts, each of which
shall be considered an original, but all of which shall constitute one instrument.
City: Licensee:
CITY OF FORT WORTH, Nichols Trinity, LLC
0j
By: By:
11W V
Randle Harwood Name: Steve Jennings
Director Title: President
Planning and Development Department
Date: , 20!
ATTEST: Approved As To Form and Legality
;t
City Secretary Assistant City Attorney
OF F
God •,... .. •�!Sa�
� •may � 9�
�q....... DECEIVED
3 D 2017 3 OFFICIAL RECORD
fim'a�ro�r �n r CITY SECRETARY
R�
a , f�9
FT.WORTH,TX
s s It
2015 ROW Encroachment Agreement-Commercial Page 9 of 12
rev.02/2015
Nichols Trinity,LLC—301 Nichols Street
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on ONI)Q-) , 177
by Randle Harwood, Director of the Plannin d Development Department of the City
of Fort Worth,on behalf the City of Fort Wo
Notary tblic, to of Texas
JENNIFER LOUISE EZERNAOK
Notary Public, State of Texas
Comm. Expires 03.01.2020
:iN OF i`�
� Notary ID 130561630
After Recording Return to:
Cassandra Foreman
Planning and Development Department
1000 Throckmorton Street
Fort Worth TX, 76102
12
of
2015 ROW Encroachment Agreement-Commercial Page rev. 10 10 of 15
Nichols Trinity,LLC—301 Nichols Street
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 S-TeJE: �>rn,n►iN s
?—ZIskDE F%_% (title), 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
ok-s ����,�T.` L i. ak1CxA,S LLL ,and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this Z- day of
Oe,T0-VSEZ , 20 .
DANIEL CAN Notary Public in and for the
=Y L Notary Public,state of Texas
�a My Commission Expires State of Texas
of
October 21, 2019
2015 ROW Encroachment Agreement-Commercial Page 11 of 12
Nichols Trinity,LLC—301 Nichols Street rev.02/2015
LEGAL DESCRIPTION OF THE PROPERTY
Lot 1 R, Block 21, MOORE-THORNTON& CO. ADDITION, an Addition to the City of Fort
Worth, Tarrant County,Texas,According to the Plat thereof Recorded in Volume A, Page 12118,
Plat Records, Tarrant County,Texas.
2015 ROW Encroachment Agreement-Commercial Page 12 of 12
Nichols Trinity,LLC—301 Nichols Street rev. 02/2015
EXHIBIT"A"
Location and Description of Encroachment and Improvements
2015 ROW Encroachment Agreement-Commercial Page 13 of 12
rev.02/2015
Nichols Trinity,LLC—301 Nichols Street
0 "
u P t
tI n 0
F` m c
n , m
_ r
r Z
w -um
D -
�,
� z 4'-a
u A
psi
rn
z � i
a
o
� }
ti liliii i
cn
ri
cn
� n�li-( ' I • � � I i i i I I I
m "� iilill
m
2-2° v
6 r.
L jJr M a
' A--
�y D 4ytC, I- ri
m
Z b. 301 301 NICHOLS
> DWIGHT D. HARTWICK
A R C H { T E C f
T R.O.W.ENCROACHMENT AGREEMENT
�.a o�w rto�va.mt nm
FORT WOF" TEXAS .n.w.aa.
nE ISE OF THESE OMMTGS LS FESPOCTO TO THE OFIMMFh1RPD5E FORM4CHTHEYWEWWT9M RORODOCFMWW"HOtKWM"NPERIGB"OFTHEARC!/FEcrrPFMWIHSm OOF+YMmTom?O[ImGIYWfwMmmwECT.ALLWOWSRess m
mntes�stNtiu rn' r xaatu�v 1limaa uazeltquswoa myeuiaaa a�aaua�lvau 1n�asarasa�auawsna+twi+uua�wmssu n3aeu���u Ecaaw�asoadna'n�aomo 3u oi®uast53x s ax+vavua gnu�0 3sn�u
»..�,�... svxsi Hi"180:1 `�GT Sd,
•".�`•"gyp` iN3W338!DV-LN3WHOV0dON3 'M'O'a
1 ; 3 IIN :) IV �G� ��tCrK
He
M9ia ! avH '9 1
9Ia 0 Y
S10HOIN L0CoLl.l o =� M LL
0
J
Q 0
g
W Z U
Q
O �
w
Z O
Z
JO 1903) LU
ui
J r?
1
i N
Lu
W
-------------------- 66 -
LU
r -
-IF
o
1111111E1111111I UW
� z
z
09
11
am
W -i
Z i= �
U � �
i
co
T
0 v