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HomeMy WebLinkAboutContract 52566 , Z 3 2p191. � pFFORSw� CITY SECRETARY CONTRACT NO. ., PUBLIC RIGHT-OF-WAY ENCROACHMENT LICENSE 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 by and through its duly authorized City Manager, Assistant City Manager, or Planning and Development Department Director, and CITY CENTER DEVELOPMENT CO., L.P., a limited partnership, SRB CITY INVESTMENTS, L.P., a limited partnership, T-L CITY INVESTMENTS,L.P., a limited partnership, and DDR/DTC CITY INVESTMENTS, L.P., a limited partnership ("Licensees"), owners of the real property located at 201 Commerce Street, Fort Worth, Texas 76102 ("Property"), acting by and through their duly authorized Representative. RECITALS WHEREAS, Licensees are the owners 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, attached as "Exhibit C" and incorporated herein for all purposes; 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," which is incorporated herein for all purposes; and WHEREAS, Licensees desire to construct/place and maintain certain improvements which will encroach in, on, above, or below the Public Right-of-Way; and WHEREAS, to accommodate the needs of the Licensees, the City will allow the encroachment under the terms and conditions as set forth in this Agreement. NOW, THEREFORE, the City and Licensees agree as follows: AGREEMENT 1. The City, in consideration of the payment by Licensees of the fee set out below and covenants and agreements hereinafter contained to be kept and performed by Licensees, hereby grants permission to Licensees to encroach in, on, above, or below and occupy a portion of the City's Public Right-of-Way as described in and at the location shown on Exhibit A, but only to the extent shown thereon, for the purpose of installing a blade sign (the "Encroachment"). Upon completion of the Encroachment, Licensees agree to be responsible for maintaining the Encroachment within the Public Right-of- Way. Licensees shall not expand or otherwise cause the Encroachment to further infringe in or on the Public Right-of-Way beyond what is specifically described in the exhibit(s) attached hereto. ROW Encroachment Agreement-Commercial 2. All construction, maintenance, or operation in connection with such Encroachment, use, or occupancy shall comply and be performed in strict compliance with this Agreement and with the Charter, Ordinances, and Codes of the City, and in accordance with the directions of the Director of the Transportation and Public Works Department or the Director of the Water Department, or their duly authorized representative. Prior to the construction of the Encroachment, Licensees shall submit all plans and specifications to the applicable Director or duly authorized representative. Licensees shall not commence construction of the Encroachment until such approval shall be indicated in writing by the applicable Director or authorized representative. However, such approval shall not relieve Licensees of responsibility and liability for concept, design, and computation in the preparation of such plans and specifications. 3. Licensees, 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 the approval and consent of the appropriate utility companies and 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 or 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 Encroachment and use, Licensees shall pay to City an additional amount equal to such additional cost as determined by the Director of Transportation and Public Works or the Director of the Water Department, or their duly authorized representative. 4. Licensees agree 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. The City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Encroachment installed by Licensees, but City will make reasonable efforts to minimize such damage. 5. Upon termination of this Agreement, Licensees shall, at the option of and at no expense to the City, remove the Encroachment and restore the Public Right-of-Way to a condition acceptable to the Director of Transportation and Public Works or the Director of the Water Department, or their duly authorized representative, in accordance with then-existing City specifications. It is understood and agreed to by Licensees that if this Agreement terminates and Licensees fail to remove the Encroachment as directed and restore the Public Right-of-Way, Licensees hereby gives City permission to remove the ROW Encroachment Agreement-Commercial Page 2 of 12 Revised 12/2018 Encroachment and any supporting structures and assess a lien on the Property for the costs expended by the City in taking such actions. 6. In order to defray all costs of inspection and supervision which the 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, Licensees agree to pay to City at the time this Agreement is requested an application fee in the sum of Five Hundred Dollars ($500.00). Additionally, Licensees agree to pay a fee in the amount of$1.44 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 thirty (30) years, commencing on the date this Agreement is executed by City. However, this Agreement may be terminated upon Licensees' noncompliance with any of the terms of this Agreement. City shall notify Licensees in writing of any noncompliance and if not cured within thirty (30) days, this Agreement shall be deemed terminated, unless such noncompliance is not susceptible to cure within thirty (30) days, in which case this Agreement shall be deemed terminated in the event that Licensees fail to commence and take such reasonable steps as are necessary to remedy the noncompliance within thirty (30) days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with continuity to remedy same. 8. It is further understood and agreed between the parties hereto that the Public Right-of-Way to be used and encroached upon 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 being 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 the parties agree to negotiate in good faith in order to accommodate the Encroachment and the public purpose. 9. LICENSEES COVENANT AND AGREE TO INDEMNIFY, AND DO HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, ROW Encroachment Agreement-Commercial Page 3 of 12 Revised 12/2018 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,WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE, OR LOCATION OF THE ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, ELECTED OFFICIALS, OR INVITEES OF THE CITY; AND LICENSEES HEREBY ASSUME ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. LICENSEES 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 ENCROACHMENTS AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEES, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES. 10. While this Agreement is in effect, Licensees agree to furnish City with a Certificate of Insurance naming City as certificate holder as proof that is 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 be not less than $1,000,000 with the understanding and agreement by Licensees that such insurance amounts may be revised upward at City's option and that Licensees shall so revise such amounts immediately following notice to Licensees of such requirement. Such insurance policy shall not be canceled or amended without at least thirty(30) days prior written notice to the Building Official of the City. A copy of such Certificate of Insurance is attached as "Exhibit B"and incorporated herein for all purposes. Licensees agree to submit a similar Certificate of Insurance annually to the City on the anniversary date of the execution of this Agreement. Licensees agree, bind, and obligate itself and 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 the Encroachment 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. ROW Encroachment Agreement-Commercial Page 4 of 12 Revised 12/2018 11. Licensees agree to deposit with the City when this Agreement is executed a sufficient sum of money to be used to pay necessary 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. 12. Licensees agree to comply fully with all applicable federal, state, and local laws, statutes, ordinances, codes, and regulations in connection with the construction, operation, and maintenance of the Encroachment and uses. 13. Licensees agree 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. 14. Licensees covenant and agree 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 Licensees 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 Licensees, its officers, agents, servants, employees, contractors, and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensees. 15. Licensees agree and acknowledge that this Agreement is solely for the purpose of permitting Licensees to construct, maintain, and locate the Encroachment over or within the 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 property in which a third-party may have an interest. Licensees agree that it will obtain all necessary permissions before occupying such property. 16. In any action brought by the City for the enforcement of the obligations of the Licensees, City shall be entitled to recover interest and reasonable attorneys' fees. ROW Encroachment Agreement-Commercial Page 5 of 12 Revised 12/2018 17. The parties agree that the duties and obligations contained in Section 5 shall survive the termination of this Agreement. 18. Licensees covenant and agree that it will not assign all or any of its rights, privileges, or duties under this Agreement without the written approval of the City, and any attempted assignment without such written approval shall be void. In the event Licensees convey the Property, Licensees may assign all of its rights and obligations under this Agreement to the new owner of the Property, and Licensees 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 Licensees or assignment to a secured lender by Licensees in the event of default or otherwise shall not require City approval provided that said lender notifies City in writing within sixty (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 Licensees shall be effective as to City unless and until written notice of such foreclosure or assignment is provided to City. 19. 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. 20. This Agreement shall be binding upon the parties hereto and their successors and assigns. 21. This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument [SIGNATURES APPEAR ON FOLLOWING PAGE] ROW Encroachment Agreement-Commercial Page 6 of 12 Revised 12/2018 City: Licensees: CITY OF FORT WORTH CITY CENTER DEVELOPMENT CO.,L.P. SRB CITY INVESTMENTS,L.P. T-L CITY INVESTMENTS,L . DDR/DTC CI ST TS,L.P. By. ,, -- By. andle Harwood, Director Name: J fy Camp ell Planning& Develo ment Title: esit and CEO, Sundance Square Management,L.P. Date: e Date: ORT' ATTEST: ;Z proved o Form and Legality City Sec Qualls Assistant City Attorney 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. Janie S. Morales Development Manager OFFICIAL RECORD CITY SECRETARY ROW Encroachment Agreement-Commercial FT > RTH PTX Revised 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 Randle Harwood, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he 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 day of C 20 0 1 Notary Pu tc in an fo the State of Texas QVP.I JENNIFER LOUISE EZERNACK �!B l' _z°' .r, Notary Public,State of Texas After recording return to: f :y_ Planning& Development `; Comm.Expires 03-01-2020 gNotary io 130561630 Development Coordination Office 200 Texas Street Fort Worth, Texas 76102 OFFICIAL RECORI 7 CITY SECRETARY FT. WORTH,T ROW Encroachment Agreement-Commercial Page 8-orl Revised 12/2018 STATE OF TEXAS § COUNTY OF TARRANT § _ BEFORE ME, the undersigned authority, a Notary Public in and for the State of 1e..xas , on this day personally appeared Johnny Campbell, President and CEO, Sundance Square Management, L.P. known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, as the act and deed of CITY CENTER DEVELOPMENT CO., L.P., a limited partnership, SRB CITY INVESTMENTS, L.P., a limited partnership, T-L CITY INVESTMENTS, L.P., a limited partnership, DDR/DTC CITY INVESTMENTS, L.P., a limited partnership, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1C0 day 0f,kA1(, 20 \� . 'Lo, Notary Public in and for the GRAQE OWENS sty publir State of Texas State of 1iic OAS Notary M 732410-2 Exp.11-16-2021 My God U+FFICIAL RECOI'V CITY SECRETARY FT V1I1RTH,T� ROW Encroachment Agreement-Commercial ' Revised 12/2018 EXHIBIT A Map of Easement and Encroachment ROW Encroachment Agreement-Commercial Page 10 of 12 Revised 12/2018 1'�' g 5�. I-� . • JONES STREET ; II R09) : ,�;IR,< .•r'',i�•' �_• n'' �f(1}'.i r4,a- r• � aG:ti, x e � ��E 4 m I '•� � � L i 00. P �cs < cx '' �� �8 �du I�'e pw �� �•Y.e)r m :`N o t o w s $" i�9��j i �• P7 4 4 8� S � �K`u 8� Gtvp00 �d d I e• �� s E 8$ on N29 39 42•Mr 209 29 dg . n ^4'1,r�.;�� ,}..•„�n.,7� .�� ..:+:..a.... ,.,...�'�u:u�}i�».,:4,r :mwF. 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