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HomeMy WebLinkAboutContract 54422 09/09/2020 CSC No.54422 1:24 PM PUBLIC RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT COMLLERCLAL 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 Development Services Department Director, and 714 MAIN REAL ESTATE HOLDINGS, LLC, a(n) limited liability company ("Licensee"), owner of the real property located at 714 MAIN STREET, Fort Worth, Texas 76102 ("Property"), acting by and through its duly authorized governing person. 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, 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, the City previously entered into two Encroachment Agreements related to the Property, City Secretary Contract No. 37189, dated June 4,2008 and recorded as Instrument No. D208227067 in the Real Property Records of Tarrant County, Texas, and City Secretary Contract No. 43837, dated November 2, 2012 and recorded as Instrument No. D212283032 in the Real Property Records of Tarrant County, Texas (collectively the "Existing Encroachment Agreements"); and WHEREAS, the Existing Encroachment Agreements could not be assigned to Licensee as a previous owner of the Property is no longer in existence and could not consent to the assignments; WHEREAS, Licensee desires to maintain the improvements permitted by the Existing Encroachment Agreements and to construct, place and maintain certain new improvements which will encroach in, on, above, or below the Public Right-of-Way; and WHEREAS Licensee agrees to assume all rights, duties, and obligations arising under the Existing Encroachment Agreements; and WHEREAS, to accommodate the needs of the Licensee, the City will allow the encroachment under the terms and conditions as set forth in this Agreement. OFFICIAL RECORD CITY SECRETARY FT.WORTH, TX ROW Encroachment A greement-Commercial Page 1 of 12 Revised 12/2018 NOW, THEREFORE, the City and Licensee agree as follows: AGREEMENT 1. The 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 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 installation of among other items, a canopy, vaults, and basement (the "Encroachment"). Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining the Encroachment within the Public Right-of- Way. Licensee 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. Licensee further agrees to assume all of the rights, duties, and obligations arising under the Existing Encroachment Agreements. 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, Licensee shall submit all plans and specifications to the applicable Director or duly authorized representative. Licensee 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 Licensee of responsibility and liability for concept, design, and computation in the preparation of such plans and specifications. 3. 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 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, Licensee 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. ROW Encroachment Agreement-Commercial Page 2 of 12 Revised 12/2018 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. The City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Encroachment installed by Licensee, but City will make reasonable efforts to minimize such damage. 5. Upon termination of this Agreement, Licensee 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 Licensee that if this Agreement ternvnates and Licensee fails to remove the Encroachment as directed and restore the Public Right-of-Way, Licensee hereby gives City permission to remove the Encroachment and any supporting structures and assess alien 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, Licensee agrees to pay to City at the time this Agreement is requested an application fee in the sum of Five Hundred Dollars ($500.00). Additionally, Licensee agrees 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. However, Licensee shall not be required to pay any square/linear foot fee for those improvements included in the Existing Encroachment Agreements. 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 Licensee's noncompliance with any of the terms of this Agreement. City shall notify Licensee 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 Licensee fails 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. ROW Encroachment A greement-Commercial Page 3 of 12 Revised 12/2018 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. 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, 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 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 ENCROACHMENTS AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEE,ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,LICENSEES,OR INVITEES. 10. While this Agreement is in effect,Licensee agrees 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 S1,000,000 ROW Encroachment A greement-Commercial Page 4 of 12 Revised 12/2018 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 immediately following notice to Licensee 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. Licensee agrees to submit a similar Certificate of Insurance annually to the City on the anniversary date of the execution of this Agreement. Licensee agrees,binds, and obligates 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 Licensee's contractors and subcontractors. 11. Licensee agrees 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. Licensee agrees 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. 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. 14. 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. ROW Encroachment A greement-Commercial Page 5 of 12 Revised 12/2018 15. Licensee agrees and acknowledges that this Agreement is solely for the purpose of permitting Licensee 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-parry may have an interest. Licensee agrees that it will obtain all necessary permissions before occupying suchproperty. 16. 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 attorneys' fees. 17. The parties agree that the duties and obligations contained in Section5 shall survive the termination of this Agreement. 18. Licensee covenants and agrees 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 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 sixty(60) days of such foreclosure or assignment and assumes all of Licensee's 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. 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. ROW Encroachment A greement-Commercial Page 6 of 12 Revised 12/2018 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 A greement-Commercial Page 7 of 12 Revised 12/2018 City: Licensee: CITE'OF FORT WORTH 714 MAIN REAL ESTATE HOLDINGS,LLC ✓JH 7ffGll��91Z f By: DJ Harrell(Sep 8,2U2u U8:36 CDT) By: DJ Harrell, Director Name: Caty Prosterrnan Development Services Title: Governing Person Date: 9-5-2020 Date: { pdovapn�� o c� d ATTEST: 0.-o oid Approved As To Form and Legality o apa*ao 000*�d 00000000 ly mat aQ4 nexp5aap M�rM-Narra-v Matt Murray(Aug 28,2020 09:15 CDT) Mary Kayser,City Secretary FWBC See. 3210 City Secretary's Office Matthew A. Murray, Assistant City Attorney City Attorney's Office 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. Evelyn troberts on beha It of(Aug 27,202012:01 CDT) Latu•ie Lewis Interim Development Manager OFFICIAL RECORD CITY SECRETARY FT.WORTH, TX ROW Encroachrnent Agreenient-Co mmercial Page 8 of 12 Revised 1212018 PAGE 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 DJ Harrell, 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 8th day of September 12020 LAURIE Digitally signed by LAURIE spRYP( LAURIE PEQUENO LEWIS PEQUENO LEWIS i a� Notary Public PEQUENO L E W I S 05 00'020.09.08 1 D:36:52 �q®P Notary STAT I. OF TEXAS D. 1322 8952 Notary Public in and for the State of Texas My Comm.Exp.Dec. 10,2023 After recording return to: Development Services Development Coordination Office 200 Texas Street Fort Worth, Texas 76102 OFFICIAL RECORD CITY SECRETARY FT.WORTH, TX ROW Encroachment A greement-Commercial Page 9 of 12 Revised 12/2018 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Tom ;on this day personally appeared Gary Prosterman, Governing Person, 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 or714 Main Real Estate Holdings,LLC, a limited liability company, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this �{�, day of 20 „ 1 iirrr +r r, T •9 •�� : �T Rotary Pub is in and far the rEN1U ECR •x FS ° State of ��P _ o r T,gRrt°E : - G' eCIC OF SHED +Irry1�11{it5��1 OFFICIAL RECORD CITY SECRETARY FT.WORTH, TX ROW Encroachment Agreement-Commercial Page 10 of 12 Revised 12/2018 EXHIBIT A Map of Easement and Encroachment ROW Encroachment A greement-Commercial Page 11 of 12 Revised 12/2018 T. Vaults A. Three new Vaults will be erected in the existing 1921 basement of the property located at 71.4 Main Street for ONCOR Electric Delivery Company. B. Vaults will extend under the sidewalk of 7th street 6'-4" North/South x 55'-0" East/West. C. Tw❑ 9'-4"x6'-3"and one 7'-611x4'-6" access grates and three vents aproximatleyl8"x 1 S" will be installed in the side ►walk of 7th street directly above the portion of the vaults located below. II. Basement A. Existing basement built in 1921 extends under city sidewalk on 7th street 6'-4" North/South and 107' East/West. 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VICINITY MAP NOT TO SCALE 714 MAIN ST DUWAY SW E4hay Avenue -Sule 40D -Forl Waft.Taxm MT D7 Tel.817.335.1121 R REG,F-I 1141 ° ZZ u W SEA m r In o CD `"4 ryQ) � a'r� � J o ti �pZp oQ � ao � a CL o c 0 a QL ti LU Q ¢ LU ire W _ 4.. Lu Z za gw coQ �2„� I= _ w C x Q uJ n Q L u coLU a N 1H]tlO7l7N317�9!yx3;uawaa�6y luawy7en.]u3 ZOLO•fiTls1i9�4 lsb�!Me�gli!^OlI0p1tri8p10Q8b901�]fl9truo!�npo�d�watsils al�l'1L��Nul11:H1ydTIN WV Ii-ii:1V 61OZ'60•Nnl'AuMnl:NO gaud ueyieua(iny q ,told EXHIBIT B Certificate of Insurance ROW Encroachment A greement-Commercial Page 12 of 12 Revised 12/2018 EXHIBIT C Metes and Bounds Legal Description of the Property ROW Encroachment A greement-Commercial Page 13 of 12 Revised 12/2018 EXY11BIT "C" PROPERTY DESCRIPTION Description for a tract of land situated in the City of Fort Worth, Texas, and being all of Lots 9 through 12, and the south 0.55 of a foot of Lot 13, Block 108, ORIGINAL TOWN OF FORT WORTH, an unrecorded Addition to the City of Fort Worth, Tarrant County, Texas, and being described as one tract by metes and bounds as follows: BEGINNING at the intersection of the southwesterly line of Main Street with the northwesterly line of West 7th Street for the most easterly comer of said Lot 9; THENCE South 30 degrees 00 minutes 00 seconds West a distance of 100.01 feet along the northwesterly line of West 7th Street to an"X"cut in concrete for the most southerly corner of Lot 9; THENCE North 60 degrees 00 minutes 21 seconds West a distance of 100.31 feet along the southwesterly line of Lots 9 through 13 to a"Y"found cut in concrete; THENCE North 29 degrees 51 minutes 38 seconds East a distance of 100.01 feet to the northeasterly line of said Lot 13 and to the southwesterly line of Main Street; THENCE South 60 degrees 00 minutes 19 seconds East a distance of 100.55 feet along the southwesterly line of Main Street and along the northeasterly line of Lots 13 through 9 to the POINT OF BEGINNING, said described tract containing 10,044 square feet of land,more or less. i i Exhibit"C"—Property Description—Solo Page