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HomeMy WebLinkAboutContract 51140 RIGHT OF WAY CITY SECRETARY,V ) ENCROACHMENT AGREEMENT CONTRACT NO. (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 Magnolia Acquisition, LP "Licensee", acting herein by and through its duly authorized Manager , the owner of the real property located at 315 W. Magnolia Ave. Fort Worth, Texas 76104 ("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: RD AGREEMENT 07ya F Rr 2018 CS�C��Q9Y 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 construct/install 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. 2. OFFICIAL RECORD CITY SECRETARY ROW Encroachment Agreement-Commercial pV.11IXQfTH9 TX R 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 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 ROW Encroachment Agreement-Commercial Page 2 of 11 Revised 10/2017 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 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 ROW Encroachment Agreement-Commercial Page 3 of 11 Revised 10/2017 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. 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, ROW Encroachment Agreement-Commercial Page 4 of 11 Revised 10/2017 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. 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 ROW Encroachment Agreement-Commercial Page 5 of 11 - Revised 10/2017 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, 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] ROW Encroachment Agreement-Commercial Page 6 of 11 Revised 10/2017 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 o or Magnolia Acquisition, LP By: By: Randle Harwood Name: Brian D. Crowell Director Title: Manager Planning and Develo ent Department Date: 209— Date: July 9 , 2018 ATTEST: F0RT� ADDroved As To Form and Legality City Secretdry *` ` �Ir Assistant City Attorney �XAS M&Cs. Na Contract Compliance Manager 1295: NIA 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. Janie S. Morales Development Manager OFFICIAL RECORD CITY SECRETARY ff.WORTH9 TX ROW Encroachment Agreement-Commercial Revised 10/2017 9 ' I ' STATE OF TEXAS 3 COUNTY OF TARRANT § This instrument was acknowledged before me on !AU (Aa Q0 , 201 3 by Randle Harwood, Director of the Planning and Development Department of the City of Fort Worth, on behalf the City of Fort Worth. JENNIFER LOUISE EZERNACK Not Public, a e of Te as P Notary Public, State of Texas o�� Comm. Expires 03-01-2020 Notary ID 130561630 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX ROW Encroachment Agreement-Commercial Page 8 of Revised 10/2017 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 appearedia4)1) CrCuxC1 , 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 ofMctc n, ,� LP , and in the capacity therein stated. �-U k,i,d�rh LP GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of, (kl U, 20 J °fiALYSHA SEXTON tiaaY. e%, 9 Notary Public,state of Texas Comm.Expires 04-26-2020 Notary Public in and for the °;,,.�� Notary ID 13063585-6 State of-"as After Recording Return to: City of Fort Worth Planning and Development Department CFA Office 200 Texas Street Fort Worth TX, 76102 OFFICIAL RECORD CITY SECRETARY T. WORTH,TX ROW Encroachment Agreement-Commercial Page 9 of 11 Revised 10/2017 METES AND BOUNDS OF THE PROPERTY LEGAL DESCRIPTION BEING all of Lot 1-R, Block 1, Moodie and Evans Subdivision, an addition to the City of Fort Worth, Texas according to the plat recorded in Cabinet B, Slide 2331 of the Plat Records of Tarrant County, Texas and all of Lots 6, 7, 8, 14, 15 and 16, Block 1, Moodie and Evans Subdivision of Block 21, Field-Welch Addition to the City of Fort Worth, Texas according to the plat recorded in Volume 63, Page 1 of the Plat Records of Tarrant County, Texas and more particularly described by metes and bounds as follows: BEGINNING at an "X" cut in concrete found at the Northwest corner of said Block 1 lying in the South right-of-way line of West Magnolia Avenue (an 80-foot wide right-of-way) at its intersection with the East right-of-way line of May Street(a 60-foot wide right-of-way); THENCE EAST, 207.00 feet along the said South right-of-way line of West Magnolia Avenue to a %2-inch iron rod set with orange plastic cap stamped "R.W. COOMBS RPLS 5294" at the Northeast corner of said Block 1 lying in the West right-of-way line of St. Louis Street(a 60-foot wide right-of-way); THENCE SOUTH, 400.00 feet along the said West right-of-way line of St. Louis Street to a 1/2- inch iron rod set with orange plastic cap stamped "R.W. COOMBS RPLS 5294" at the Southeast corner of said Block 1 lying in the North right-of-way line of West Morphy Street (a 26-foot wide right-of-way); THENCE WEST, 207.00 feet along the said North right-of-way line of West Morphy Street to a an "X" cut in concrete found at the Southwest corner of aforesaid Block 1 lying in the aforesaid East right-of-way line of May Street; THENCE NORTH, 400.00 feet along the said East right-of-way line of May Street to the PLACE OF BEGINNING, containing 1.900 acre (82,800 square feet) of land. 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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). PRODUCER CONTACT NAME: Elizabeth Gilbert MHBT, a Marsh &McLennan Agency, LLC company PHONEFAx 8144 Walnut Hill Lane, 16th FI A/C No, e Ext):972-770-1470 A/C No):972-770-1699 Dallas TX 75231 ADDRESS: Elizabeth—Gilbert@mhbt.com INSURER(S)AFFORDING COVERAGE NAIC# INSURERA: Phoenix Insurance Company 25623 INSURED SAXTOGRO INSURER B:Travelers Indemnity Co of America 25666 The Saxton Group Restaurant Holdings, LLC 7859 Walnut Hill Lane, Suite 375 INSURER C:Travelers Indemnity Company of CT 25682 Dallas TX 75230 INSURER D: Farmington Casualty Company 41483 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER:1614219197 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. INSR ADDLITYPE OF INSURANCE INSD SUER POLICY NUMBER MM/D YYYY MMPOLICY EFF L EXP LTR DDICY YYYY LIMITS A X COMMERCIAL GENERAL LIABILITY 6305,1835191 3/15/2018 3/15/2019 EACH OCCURRENCE $1,000,000 DAMAGET RENTED CLAIMS-MADE I-XI OCCUR PREMISES Ea occurrence $100,000 MED EXP(Any one person) $Excluded PERSONAL&ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 POLICY PRO LOC PRODUCTS-COMP/OP AGG $2,000,000 JECT OTHER: $ B AUTOMOBILE LIABILITY BA5,1907732 3/15/2018 3/15/2019 COMBINED SINGLE LIMIT Ea accident $1,000,000 X ANY AUTO BODILY INJURY(Per person) $ OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS ONLY AUTOS X HIREDXNON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY Per accident C X UMBRELLA LIAB X OCCUR CUP5J911733 3/15/2018 3/15/2019 EACH OCCURRENCE $10,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $10,000,000 DED X RETENTION$ $ D WORKERS COMPENSATION U135,1906599 3/15/2018 3/15/2019 X PER OTH- AND EMPLOYERS'LIABILITY Y/N STATUTE I ER ANYPROPRIETOR/PARTNER/EXECUTIVE N N/A E.L.EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUE (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Additional Insured form CGD246 edition 08/15 applies to the General Liability policy. Additional Insured form CG2029 edition 11/85 applies to the General Liability policy. Additional Insured form CAT353 edition 02/15 applies to the Automobile Liability policy. Waiver of subrogation form CGD467 edition 07/13 applies to the General Liability policy. Waiver of subrogation form CAT353 edition 02/15 applies to the Automobile Liability policy. The General Liability and Auto Liability policies include a blanket additional insured endorsement to the certificate holder only when there is a written contract between the named insured and the certificate holder that requires such status. See Attached... CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Fort Worth ACCORDANCE WITH THE POLICY PROVISIONS. Planning&Development—CFA Office PN 18-00075 AUTHORIZED REPRESENTATIVE 200 Texas Street Fort Worth TX 76102 �� ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: SAXTOGRO LOC#: ,a►�o�® ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY NAMED INSURED MHBT,a Marsh&McLennan Agency,LLC company The Saxton Group Restaurant Holdings,LLC 7859 Walnut Hill Lane,Suite 375 POLICY NUMBER Dallas TX 75230 CARRIER NAIL CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE The General Liability and Auto Liability policies include a blanket waiver of subrogation endorsement that may apply only when there is a written contract between the named insured and the certificate holder that requires such wording. Certificate holder Includes:City of Fort Worth Re:Magnolia project ACORD 101 (2008/01) ©2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD