HomeMy WebLinkAboutContract 54637 Date Received: 10/08/20 City Secretary
Time Received:9:04 AM Number: 54637
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
Development Services Department Director, and Aldi (Texas), L.L.C., a Limited
Liability Company ("Licensee"), owner of the real property located at 5129 Golden
Triangle Boulevard, Fort Worth, Texas 76244 ("Property"), acting by and through its
duly authorized Scott W. Huska.
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, Licensee desires 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 Licensee, the City will allow the
encroachment under the terms and conditions as set forth in this Agreement.
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 installing
approximately 14 L.F. of 24" storm pipe crossing into Golden Triangle Boulevard Right-
of-Way. Upon completion of the Encroachment, Licensee agrees to be responsible for
OFFICIAL RECORD
ROW Encroachment Agreement-Commercial Page 1 of 12
CITY SECRETARY Revised 4/2020
FT.WORTH, TX
II
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.
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.
4.
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
ROW Encroachment Agreement-Commercial Page 2 of 12
Revised 4/2020
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 terminates 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 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, 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.
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.
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.
ROW Encroachment Agreement-Commercial Page 3 of 12
Revised 4/2020
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
$1,000,000
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
ROW Encroachment Agreement-Commercial Page 4 of 12
Revised 4/2020
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.
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-party may have an interest. Licensee agrees 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
Licensee, City shall be entitled to recover interest and reasonable attorneys' fees.
ROW Encroachment Agreement-Commercial Page 5 of 12
Revised 4/2020
17.
The parties agree that the duties and obligations contained in Section 5 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.
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 4/2020
City: Licensee:
CITY OF FORT WORTH Aldi (Texas), L.L.C.
A Limited Liability Company
( �o00By:DJ Laeio� :48CDT) By: Aldi, Inc. (Pennsylvania),
DJ Harrell,Interim Director A Pennsylvania Corporation
Development Services Department Its Sole Member
Date: Oct 7,2020 Date:
By: J4.41— 4&(,6
Name: Scott W. Huska
Title: Vice President
Date: A
4,dd4vUQ�
a.1 o 000 00 adC
ATTEST: a°°�� o Approved As To Form and Legality
Pva 00
Ppa*000 0*�
p
Q 00 5 qa
far Ronald P.aanzales ab�nFXAoo
for Ronald P.Go,niw(Oct S,202008M COT) Matt Murray(oc[7,2a20 U-3 C
Mary Kayser, City Secretary FWBC Sec. 3210
City Secretary's Office Matthew A. Murray
Assistant City Attorney
Contract Compliance Specialist:
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.
Laurie Lewis(Oct 6,202312:39 CDTJ
Laurie Lewis
Interim Development Manager
OFFICIAL RECORD
ROW Encroachment Agreement-Commercial Page 7 of 12
CITY SECRETARY Revised 4/2020
FT.WORTH, TX
1 ' MR113
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, Interim Director, 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 7th day of
October , 20 20
Digitally signed by LAURIE
LAURIE PEQUENO LEWIS RYP LAURIE PEQUENO LEWIS
Date:2020.10.07 15:09:00
PEQUENO LEWIS z0� Notary Public
-OS'00' . � • STATE OF TEXAS
Notary Public in and for the State of Texas Ny,�oF�}� Notary I.D. 132278952
My Comm.Exp.Dec. 10,2023
After recording return to:
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
OFFICIAL RECORD
ROW Encroachment Agreement-Commercial Page 8 of 12
CITY SECRETARY Revised 4/2020
FT.WORTH, TX
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 Scott W. Huska, Vice President 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 Aldi (Texas), L.L.C., a Limited Liability Company,
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this g4*'day of
I
2020. ;.��`P�P� SOPHIA TYRE
P
_Notary Public.State of Texas
9r +Pr Comm. Expires 06-17-2024
Notary ID 132525962
nnM
Notary Public in and for the
State of
OFFICIAL RECORD
ROW Encroachment Agreement-Commercial Page 9 of 12
CITY SECRETARY Revised 4/2020
FT.WORTH, TX
EXHIBIT A
Map of Easement and Encroachment
ROW Encroachment Agreement-Commercial Page 10 of 12
Revised 4/2020
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3.3% ADDITION
Lo > 695 OWNER/DEVELOPER:
Ll- ALDI, INC.
wry
o w o W 2500 WESTCOURT ROAD
0� > O r- > m DENTON, TEXAS 76207
(D o II o
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ui o 3: ENGINEER:
� II II BURGER ENGINEERING, LLC
II Ui °p cn TBPE F-12997
00 U) X vi 17103 PRESTON ROAD, SUITE 180N
X u w DALLAS, TEXAS 75248
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0±00 1+00 (SHEET 7 OF 7)
DATE: JUNE, 2020
EXHIBIT B
Certificate of Insurance
ROW Encroachment Agreement-Commercial Page 11 of 12
Revised 4/2020
Blanket Notification to Others of Cancellation ZURICH'
or Non-Renewal
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
Policy No. GLO 1009247-04 Effective Date: 01/012020
This endorsement applies to insurance provided under the:
Commercial General Liability Coverage Part
A. If we cancel or non-renew this Coverage Part by written notice to the first Named Insured, we will mail or deliver
notification that such Coverage Part has been cancelled or non-renewed to each person or organization shown in a
list provided to us by the first Named Insured if you are required by written contact or written agreement to provide
such notification. S uch list
1. Must be provided to us prior to cancellation or non-renewal;
2. Must contain the names and addresses of only the persons or organizations requiring notification that such
Coverage Part has been cancelled or non-renewed; and
3. Must be in an electronic format that is acceptable to us.
B. Our notification as described in Paragraph A. of this endorsementwill be based on the most recent list in our records
as of the date the notice of cancellation or non-renewal is mailed or delivered to the first Named Insured. We will mail
or deliver such notification to each person or organization shown in the list
1. Within 10 days of the effective date of the notice of cancellation, if we cancel for non-payment of premium; or
2. At least30 days prior to the effective date of:
a. Cancellation, if cancelled for any reason other than nonpayment of premium; or
b. Non-renewal, but not including conditional notice of renewal,
unless a greater number of days is shown in the Schedule of this endorsement for the mailing or delivering of such
notification with respectto Paragraph B.1. or Paragraph 13.2. above.
C. Our mailing or delivery of notification described in Paragraphs A. and B. of this endorsement is intended as a courtesy
only. Our failure to provide such mailing or delivery will not
1. Extend the Coverage Part cancellation or non-renewal date;
2. Negate the cancellation or non-renewal; or
3. Provide any additional insurance thatwould not have been provided in the absence of this endorsement
U-G L-1521-B C W(01/19)
Pagel oft
Includes copyrighted material of Insurance S ervices Office, Inc.,with its permission.
D. We are not responsible for the accuracy, integrity, timeliness and validity of information contained in the list provided
to us as described in Paragraphs A. and B. of this endorsement
SCHEDULE
The total number of days for mailing or delivering with respect to Paragraph B.1. of 10*
this endorsement is amended to indicate the following number of days:
The total number of days for mailing or delivering with respectto Paragraph B.2. of 30**
this endorsement is amended to indicate the following number of days:
* If a number is not shown here, 10 days continues to apply.
**If a number is not shown here, 30 days continues to apply.
All other terms and conditions of this policy remain unchanged.
U-GL-1521-B CW(01A9)
Page 2 of 2
Includes copyrighted material of Insurance S ervices Office,Inc., with its permission.
EXHIBIT C
Metes and Bounds or Location Description of the Property
Legal Description:
Lot 1, Block 2—GTB Business Park Addition
ROW Encroachment Agreement-Commercial Page 12 of 12
Revised 4/2020