HomeMy WebLinkAboutContract 50032 5 ? CITY SECRETARY
CONTRACT N0.
Q RIGHT OF WAY
ENCROACHMENT AGREEMENT
r
(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 Centergy Left Bank LP, [full legal name], a Texas
Limited Partnership[type of entity] "Licensee",acting herein by and through its duly authorized
West Miller, President [title], the owner of the real property located at LOT 2R-1 Block 5R,
K.M.Van Zandt's Addition,Fort Worth,Texas 76107("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, 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 constructlinstall and/or allow to remain, certain
improvements for the purpose of signage (whether one or more, 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.
O FI iAl. ITECORD
2015 ROW Encroachment Agreement-Commercial G TAPage I of 12
CI'Y 2, ° RE rev.OW2015
FT.11VO iTR,Tat
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,
ight-o -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 htr 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 made more costly by virtue of the construction, maintenance or existence of the
Improvements 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.
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6..
Licensee agrees to pay to City at the time this Agreement is requested an application
fee of$325.00 in order to defray all costs of inspection and supervision which City has incurred
or will incur as a result of the construction, maintenance, inspection or management of the
encroachment and uses provide for by this Agreement. Licensee agrees to pay a fee in the amount
of$.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
ight-
ofWay 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 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 tern hereof determine in its sole discretion to sue 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 purposes, 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
2015 ROW Encroachment Agreement-Commercial Page 3 of 12
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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 statue, 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 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, 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
2015 ROW Encroachment Agreement-Commercial Page 4 of 12
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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 OR 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 maybe 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.
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.
2015 ROW Encroachment Agreement-Commercial Page 5 of 12
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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, and any 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.
[SIGNATURES APPEAR ON FOLLOWING PAGE[
2015 ROW Encroachment Agreement-Commercial Page 6 of 12
rev.02/2015
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, Centergy Left Bank LP, a Texas Limited
Partnership
Centergy West 7`h LP, LLC a Texas Limited
Liability Company its General Partner
By: By: // —
Randle Harwood Name: West Miller
Director Title: President
Planning and velopment Department
Date: , 20 Date: ,20L7
<,OT ...
off.
ATTEST: >- * Approved As To Form and Legality
Ass+ , ity Secretary Assistant City Attorney
M&C: EOFF!,CIAL ]TARY
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2015 ROW Encroachment Agreement-Commercial T Page 7 of 12
�0`ECEIVED
6 2011 - rev.02/2015
� CJNOFFORT
v
CP GTYSECRE7 Ry
�9SPEZ ` �d
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.
JL S. Morales
Development Manager
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on /a' `/ ,20 by Randle Harwood,
Director of the Planning and Development Department of the City of Fort Worth,on behalf
of the City of Fort Worth.
Notary Public, State of Texas
a�Pia, IRMA SAENZ
��....,a ,
.`� Notary Public, State of Texas
:n= Comm. Expires 01-28-2020
Notary ID 2724984
After Recording Return to:
Cassandra Foreman
Planning and Development Department
1000 Throckmorton Street
Fort Worth,TX. 76102
2015 ROW Encroachment Agreement-Commercial Page 8 of 12
rev.02/2015
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 West Miller,President(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 Centergy West,a Texas Limited Partnership,and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day or
2a n
Notary Public in and for the
State of Texas
%011I0p
�? Pie,. ERICA WHITE
_ Notary Public,State of Texas
Comm.Expires 03-24-2021
°rrnt«` Notary 10 131058772
2015 ROW Encroachment Agreement-Commercial Page 9 of 12
rev.02/2015
LEGAL DESCRIPTION OF THE PROPERTY
LOT 2R BLOCK 5R OF LOTS 1R AND 2R BLOCK 5R K.M. VAN ZANDT'S
ADDITION AN ADDITION OF THE CITY OF FORT WORTH,TARRANT
COUNTY,TEXAS ACCORDING TO THE PLAT THEREOF RECORDED UNDER
CLERKS NUMBER 21569646
2015 ROW Encroachment Agreement-Commercial Page 10 of 12
rev.02/2015
EXHIBIT"A"
Location and Description of Encroachment and Improvements
2015 ROW Encroachment Agreement-Commercial Page 11 of 12
rev.02/2015
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