HomeMy WebLinkAboutContract 45467 (2)•
RIGHT OF WAY
ENCROACHMENT AGREEMENT . .
(COMMERCIAL)
cart SECRETARY
CONTRAcTNo. LIt o -7
THIS AGREEMENT is made and entered into by and between the City of Fort
Worth, a municipal corporation of Tarrant County, Texas, acting herein by and through
its duly authorized City Manager or its duly authorized Assistant City Manager or
Planning and Development Department Director, hereinafter referred to as the "City", and
Magnolia May, LLC, acting herein by and through its duly authorized Co -managing
Member- hereinafter referred to as "Licensee", Owner of the property located at 401 West
Magnolia Avenue, Fort Worth, Texas 76104 ("Property").
AGREEMENT
1.
For and in consideration of the payment by Licensee of the fee set . out below and
:1
•
•
the true and faithful performance of the mutual covenants herein contained, City hereby
grants to Licensee permission to construct/ install and/or allow to remain,
Improvements) ("Improvement") that encroaches upon, uses and/or occupies portions of
; ; i
the space under, on and/or above the streets, alleys, sidewalks .and other public rights -of-
,_
way, such Improvement(s) are described as follows:
Construction of handrails for stairs in front of building and placement of a 2,000 gallon
grease trap
The location and description of said Improvement and the encroachment is more
particularly described in Exhibit "A", attached hereto, incorporated herein and made a
part hereof for all purposes.
2.
All construction, maintenance and operation • . in connection with such
Improvement, use and occupancy shall be performed in strict
Agreement and the Charter, Ordinances and Codes of t
directions of the Director of Transportation and Pub
REGtIVE4D MAR 2 8 2014
with this
e with the
is duly
2012 ROW Encroachment Agreement -Commercial
Page 1 of 10
authorized representative. All plans and specifications thereof shall be subject to the
prior written approval of the Director of Transportation and Public Works, or his duly
authorized representative but such approval shall not relieve Licensee of responsibility
and liability for concept, design and computation in preparation of such plans and
specifications.
3.
Upon completion of construction and installation of said Improvement and
thereafter, there shall be no encroachments in, under, on or above the surface area of the
streets, alleys, sidewalks and other public rights -of -way involved, except as described
herein and shown on the heremabove referred to 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
the utility companies and the appropriate agencies of the State 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 by the Director of
Transportation and Public Works of the City, or his duly authorized representative.
5.
City may enter and utilize the referenced areas at any time for the purpose of
installing or maintaining improvements necessary for the health, safety and welfare of the
public or for any other public purpose. In this regard, Licensee understands and agrees
that City shall bear no responsibility or liability for damage or disruption of
improvements installed by Licensee or its successors, but City will make reasonable
efforts to minimize such damage.
2012 ROW Encroachment Agreement -Commercial Page 2 of 10
6.
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 to
City at the time this Agreement is requested an application fee in the sum of Two
Hundred and Seventy Five Dollars ($275.00). Upon execution of this Agreement and
annually thereafter Licensee agrees to pay a fee in the amount of $.56 per square/linear
foot of the encroachment area.
7.
The teim of this Agreement shall be for thirty (30) years, commencing on the date
this Agreement is executed by the City of Fort Worth. Provided however, this Agreement
shall terminate upon the non-compliance of any of the terms of this Agreement by the
Licensee. City shall notify Licensee of the non-compliance and if not cured within thirty
days this Agreement shall be deemed terminated.
8.
Upon termination of this Agreement, Licensee shall, at the option of City and at
no expense to City, restore the public right-of-way and remove the Improvement
encroaching into the public right-of-way, to a condition acceptable to the Director of
Transportation and Public Works, or his duly authorized representative, and 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
Improvement, Owner hereby gives City permission to remove the Improvement and any
supporting structures and assess a lien on the Property for the costs expended by the City
to remove such Improvement
9.
It is further understood and agreed upon between the parties hereto that the public
rights -of -way, alleys, sidewalks ("public right-of-way") to be used and encroached upon
2012 ROW Encroachment Agreement -Commercial Page 3 of 10
as described herein are 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 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 teiin hereof determine in its sole discretion to use or cause or permit the right of way
to be used for any other public purpose, including but not being limited to underground,
surface of overhead communication, drainage, sanitary sewerage, transmission of natural
or electricity, or any other public purpose, whether presently contemplated or not, that
this Agreement shall automatically terminate.
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 property
in which a third party may have an interest. Licensee agrees that it will obtain all
necessary permission 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 said Improvement, 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,
2012 ROW Encroachment Agreement -Commercial Page 4 of 10
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 AND EMPLOYEES, 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 SAID IMPROVEMENT 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 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 ANY AND ALL ACTS OR OMISSIONS OF
LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR
TRESPASSERS.
2012 ROW Encroachment Agreement -Commercial Page 5 of 10
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 located and described in Exhibit "A".
The amounts of such insurance shall be not less than the following:
$1,000,000 Commercial General Liability
with the understanding of and agreement by Licensee that such insurance amounts shall
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 provide that it cannot be canceled or amended without at least ten (10) days prior
written notice to the Building Official of the City of Fort Worth. A copy of such
Certificate of Insurance is attached as attached as Exhibit "B". 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 city streets. All insurance coverage required herein shall include coverage of all
Licensees' contractors.
16.
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 Consent
Agreement in its entirety in the deed records of Tarrant County, Texas. After being
recorded, the original shall be returned to the City Secretary of the City of Fort Worth,
Texas.
2012 ROW Encroachment Agreement -Commercial Page 6 of 10
17.
In any action brought by the City for the enforcement of the obligations of
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 contract without the prior written approval of the City
Manager or designee. Any attempted assignment without prior written approval will be
void.
19.
THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION
CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
20.
This Agreement shall be binding upon the parties hereto, their successors and
assigns.
EXECUTED this �� day of _ I\Aiti , 201
2012 ROW Encroachment Agreement -Commercial Page 7 of 10
City
City of Fort Worth
By:
Randle Harwood
Director
Planning and Development
ATTEST:
City Secretary
Licensee
TYPE :Magnolia May, LLC.
By:
Name:Andrew Blake
Title: Co -managing Member
Approved As To Form and Legality
idatzait
Assistant City Attorney
OFFICIAL ECORD�
CM' SECRETARY \
FtWORTh,TX
2012 ROW Encroachment Agreement -Commercial Page 8 of 10
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/she
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.
GIVE UNDER AND AND SEAL OF OFFICE this,�n day of
20
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:ter
CASSANDRA F. FOREMAN
Notary Public. State of Texas
My Commission Explre5
April 26, 2017
Notary Public in and for the
State of Texas
OVAL RECORD'
wY SECRETARY j
Fr, WORTH, TX
2012 ROW Encroachment Agreement -Commercial
Page 9of10
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 Andrew Blake, Co -managing Member, 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 Magnolia May, LLC., and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this L 4 S` day of
tido ruzien/
JENNIPER NICOLE BARNES
My Commission Expires
February 14,, 2018
J
es 6gaAry
N • ary Pub ' in and for the
State of Texas
2012 ROW Encroachment Agreement -Commercial Page 10 of 10
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BENNE17w BENNER rg PETTIT MAGNOLIA AND MAY 24 February 2014
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MAGNMAY-01
CERTIFICATE OF LIABILITY INSURANCE
JWILLMOTT
DATE (MM/DD/YYYY)
2/26/2014
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER 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 pollcy(ies) must 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
Gus Bates Insurance & Investments
2409 Forest Park Blvd.
Fort Worth, TX 76110
INSURED
Magnolia May, LLC
2929 W 5th Street, Suite A
Fort Worth, TX 76107
COVERAGES
CONTACT
NAME:
PHONE 817 335-9547
E-MAIL
ADDRESS:
INSURER(S) AFFORDING COVERAGE
INSURER A : Essex Insurance Company
INSURER B :
INSURER C :
INSURER D :
INSURER E:
INSURER F :
CERTIFICATE NUMBER: REVISION NUMBER:
I ra No): (817) 338-1422
NAIC 11
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 TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS
LTRINSR WVD POLICY NUMBER (MM/DDIYYYY) (MM/DDIYYYY)
GENERAL LIABILITY
A X COMMERCIAL GENERAL LIABILITY
CLAIMS -MADE X OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:
X I POLICY I I PRO-
JECT I I LOC
AUTOMOBILE LIABILITY
ANY AUTO
ALL OWNED
AUTOS
HIRED AUTOS
UMBRELLA LIAB
SCHEDULED
AUTOS
NON -OWNED
AUTOS
EXCESS LIAB
DED I RETENTION$
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
ANY PROPRIETOR/PARTNER/EXECUTIVE
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
If yes, describe under
DESCRIPTION OF OPERATIONS below
OCCUR
CLAIMS -MADE
Y/N
N/A
EACH OCCURRENCE
3DN7291 08/09/2013 08/09/2014 DAMAGE TO RENTED
PREMISES (Ea occurrence)
MED EXP (Any one person)
PERSONAL & ADV INJURY
GENERAL AGGREGATE
PRODUCTS - COMP/OP AGG
COMBINED SINGLE LIMIT
(Ea accident)
BODILY INJURY (Per person)
BODILY INJURY (Per accident)
PROPERTY DAMAGE
(PER ACCIDENT)
EACH OCCURRENCE
AGGREGATE
I TORY LIA ITS I I OER
E.L. EACH ACCIDENT
E.L. DISEASE - EA EMPLOYEE
E.L. DISEASE -POLICY LIMIT I $
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
CERTIFICATE HOLDER
City of Fort Worth
1000 Throckmorton
Fort Worth, TX 76102
CANCELLATION
1,000,000
100,000
5,000
1,000,000
2,000,000
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
ACORD 25 (2010/05)
1988-2010 ACC
The ACORD name and logo are registered marks of ACOR EXHIBIT B