HomeMy WebLinkAboutContract 45000 (2)RIGHT OF WAY
ENCROACHMENT AGREEMENT
(COMMERCIAL)
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
Race Street Lofts, Ltd„ acting herein by and through its duly authorized representative,
hereinafter referred to as "Licensee", Owner of the improvements commonly known as
the Race Street Lofts located at 2817 Race Street, Fort Worth TX 76111 ("Property").
AGREEMENT
1.
For and in consideration of the payment by Licensee of the fee set out below and
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,
improvement(s) ("Improvements") that encroaches upon, uses and/or occupies portions
of the space under, on and/or above the streets, alleys, sidewalks and other public rights -
of -way, such Improvement(s) are described as follows:
Concrete flume, stairs and hand rails, sidewalks, and driveway into the public
right of way of McLemore Street
The location and description of said Improvements and the encroachment is more
particularly described in Exhibit "A", attached hereto, incorporated herein and made a
part hereof for all purposes.
RECEIVED OCT iB 2013
2012 ROW Encroachment Agreement -Commercial Page 1 of 10
2.
All construction, maintenance and operation in connection with such
Improvements, use and occupancy shall be performed in strict compliance with this
Agreement and the Charter, Ordinances and Codes of the City and in accordance with the
directions of the Director of Transportation and Public Works of City, or his or her duly
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 or her
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 Improvements 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 hereinabove 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 or her duly authorized representative.
2012 ROW Encroachment Agreement -Commercial Page 2 of 10
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.
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 Seventy Five and No/100 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 term 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
(30) days, this Agreement shall be deemed terminated.
8.
City shall give Licensee ninety (90) days written notice of termination of this
Agreement. 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 Improvements
encroaching into the public right-of-way, to a condition acceptable to the Director of
Transportation and Public Works, or his or her duly authorized representative, and in
accordance with then existing City specifications. It is understood and agreed by
2012 ROW Encroachment Agreement -Commercial Page 3 of 10
Licensee that if this Agreement terminates and Licensee fails to remove the
Improvements, Owner hereby gives City permission to remove the Improvements and
any supporting structures and assess a lien on the Property for the costs expended by the
City to remove such Improvements.
9.
It is further understood and agreed upon between the parties hereto that the public
rights -of -way, alleys, and sidewalks ("public right-of-way") to be used and encroached
upon 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 at any time during the
term hereof determines 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 or overhead communication, drainage, sanitary sewerage, transmission of natural
gas or electricity, or any other public purpose whether presently contemplated or not, this
Agreement shall terminate upon ninety (90) days written notice to Licensee In the event
of termination under this Section 9, Licensee shall perform the obligations regarding
restoring the public right-of-way and removing the Improvements as 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 property
in which a third party may have an interest. Licensee agrees that it will obtain all
necessary permissions before occupying such property.
2012 ROW Encroachment Agreement -Commercial Page 4 of 10
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 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 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 IMPROVEMENTS AND
ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT
2012 ROW Encroachment Agreement -Commercial Page 5 of 10
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.
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.
2012 ROW Encroachment Agreement -Commercial Page 6 of 10
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 of
Licensee's 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 Agreement in its
entirety 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, Texas.
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 his or her designee. Any attempted assignment without prior written
approval will be void. Assignment to a secured lender of Licensee in the event of default
or foreclosure shall not require City approval provided that said lender shall notify City in
writing of its assumption of Licensee s rights and obligations hereunder within sixty (60)
days of such assignment resulting from foreclosure or default. No assignment to any
secured lender of Assignee shall be effective unless and until written notice of such
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.
2012 ROW Encroachment Agreement -Commercial Page 7 of 10
20.
This Agreement shall be binding upon the parties hereto, their successors and
assigns.
EXECUTED this ` day of
CITY
City of Fort Worth
if
By:
Ran v le `'rw
Director of P1nning and Development
ATTEST:
, 20 /42
LICENSEE
Race Street Lofts, Ltd.,
a Texas limited partnership
By: Race Street Lofts GP, LLC,
its General Partner
By: Fort Worth Housing Finance
Corporation, its Sole Member
By: 4.-}ctr,te,Jesus J. Chapa, '1
Assistant General Manager
Approved As To Form and Legality
•
Assistant City Attorney
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.
G EN UNDER MY HAND AND SEAL OF OFFICE this
emit,"
• •
•b -
•
CASSANDRA F. FOREMAN
Notary Public, State of Texas
My Commission Expires
April 26, 2017
Notary Public in and for the
State of Texas
2012 ROW Encroachment Agreement -Commercial
Page 9 of 10
STATE OF TEXAS
COUNTY OF TARRANT
5 16UJ-3b y
Jesus J. a Cha Assistant General Manager of the Fort Worth HousingFinance
p� g
Corporation, a Texas housing finance corporation, on behalf of said corporation, as Sole
Member of Race Street Lofts GP, LLC, a Texas limited liability company, General
Partner of Race Street Lofts, Ltd., a Texas limited partnership, acting on behalf of such
limited partnership.
This instrument was acknowledged before me on
SARAHJ. ODLE
MY COMMISSION EXPIRES
November 5, 2015
AFTER FILING RETURN TO:
Avis Chaisson,
City of Fort Worth
Housing and Economic Development Dept.
1000 Throckmorton Street
Fort Worth TX 76102
Notar ublic, Sta e o Texas
2012 ROW Encroachment Agreement -Commercial Page 10 of 10
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Exhibit "B" NRPGR-1
CERTIFICATE OF LIABILITY INSURANCE I
OP ID: MN
DATE (MMIDD/YYYY)
09/26/13
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 policy(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 Phone: 480-730-4920
THE MAHONEY GROUP - MESA
1835 South Extension Road
Mesa, AZ 85210-5942
Michael W. Brown
INSURED
Race Street Lofts Ltd
The NRP Group LLC
NRP Management LLC
c/o Brunswick Companies
2857 Riviera Dr
Fairlawn, OH 44333
COVERAGES
Fax: 480-730-4929
CONTACT
NAME:
PHONE
(NC. No. Ext):
E-MAIL
ADDRESS:
INSURER(S) AFFORDING COVERAGE
INSURER A:Travelers Property & Casualty
INSURER B :
INSURER C:
INSURER D :
INSURER E:
IN$I IRFR F •
IFAX
fA/C. No):
CERTIFICATE NUMBER: REVISION NUMBER:
NAIC #
36161
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,
I INSR TYPE OF INSURANCE ADDLa%Awn POLICY NUMBER /MMIDDnEYFYY) 1MM/finllYVY VYI LIMITS
GENERAL LIABILITY
A X COMMERCIAL GENERAL LIABILITY X SLS6A70598313
CLAIMS -MADE OCCUR
A
A
X
GEN'L AGGREGATE LIMIT APPLIES PER:
E POLICY I I .Pi R� I X I LOC
AUTOMOBILE LIABILITY
X
ANY AUTO
ALL OWNED
AUTOS
HIRED AUTOS
UMBRELLA LIAB
EXCESS LIAB
DED I X 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
X
SCHEDULED
AUTOS
NON -OWNED
AUTOS
X
X
OCCUR
CLAIMS -MADE
0
Y/N
nN/A
09/19/13 09/19/14
8106A70598313 09/19/13 09/19/14
EX6A70598313 09/19/13 09/19/14
DESCRIPTION OF OPERATIONS! LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
EACH OCCURRENCE
DAMAGE TO RENTED
PREMISES (Ea occurrence)
I MED EXP (Any one person)
PERSONAL & ADV INJURY
I GENERAL AGGREGATE
PRODUCTS - COMP/OP AGG
COMBINED SINGLE LIMIT
(Ea accident)
BODILY INJURY (Per person)
BODILY INJURY (Per accident)
IPROPERTY DAMAGE
(Per accident)
I EACH OCCURRENCE
IAGGREGATE
I I WC STATU- TORY LIMITS I I OER
E.L. EACH ACCIDENT $
E.L. DISEASE - EA EMPLOYE $
E.L. DISEASE - POLICY LIMIT $
1,000,00
100,00
Exclude
1,000,00
2,000,00
2,000,00
1,000,00
25,000,0001
25,000,00
•
CERTIFICATE HOLDER
C
City of Fort Worth
1000 Throckmorton Street
Fort Worth, TX 76102
CANCELLATION
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
1988-2010 ACORD CORPORATION. All rights reserved.
ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD