HomeMy WebLinkAboutContract 55365 Date Received: 03/03/2021 City Secretary
Time Received: 2*50 pm Number: 55365
PUBLIC RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT
COAD&xCL4L
THIS AGREEMENT is made and entered into by and between (1) 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; (2) BARNETT AND
GARSKA INC., a(n) corporation ("Licensee"), acting by and through its duly authorized
Director; and (3) REFUSE-2-11-LIMITED, LP, a(n) limited partnership, ("Owner"),
owner of the real property located at 604 SOUTH JENNINGS,Fort Worth,Texas 76104
("Property"), acting by and through its duly authorized general partner.
RECITALS
WHEREAS, Licensee, as lessee, and Owner, as lessor, are parties to that certain
tenant/landlord lease concerning certain real property owned by Owner and 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 WEE encroach in, on, above, or below the Public Right-of-Way; and
WHEREAS, to accommodate the needs of the Licensee and Owner, the City will
allow the encroachment under the terms and conditions as set forth in this Agreement.
NOW, THEREFORE,the City, Owner,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 a
patio cover and fence (the "Encroachment"). Upon completion of the Encroachment,
ROW Fncmachmerrt Agreemerrt-Commercial OFFICIAL RECORD
PN20-00117 CITY SECRETARY
FT. WORTH, TX
Licensee agrees to be responsible for maintaining the Encroachment within the Public
Right-of-Way. Licensee shall not expand, install additional structures, 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. Licensee expressly understands and agrees that City may
remove the patio cover and fence if necessary for the installation, maintenance, repair, or
replacement of public improvements located within the City's Right-of-Way and that the
City shall bear no responsibility or liability for any damage to the patio cover and fence;
however, City will make reasonable efforts to minimize such damage. Additionally, City
shall bear no responsibility or liability for any disruption or other adverse consequences
resulting from the Encroachment installed by Licensee.
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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 and Owner
that if this Agreement terminates and Licensee fails to remove the Encroachment as
directed and restore the Public Right-of-Way, Licensee and Owner hereby give 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.
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,
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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
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.
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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.
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
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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 this
Agreement, City shall be entitled to recover interest and reasonable attorneys' fees.
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.
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]
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City:
CITY
YOO�{F/�FORT WORTH
By:o-7u71.3;z7n7e.777)
DJ Harrell, Director
Development Services Department
Date: 3-3-2021
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oa FOnr as
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ATTEST: v o °o=� Approved As To Form and Legality
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�D��D`lGIG� C70`llv�lG2J 14 nExAsdap
'for Ronald P.Gonzales(Mar 3,202109:36 CST) Matthew Murray(Feb 26,20211 :55 CST)
Mary Kayser, City Secretary FWBC Sec. 3210
City Secretary's Office Matthew A. Murray, Assistant City Attorney
City Attorney's Office
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.
7GIG/IP �c�r��off tilo���o,r
ITn'ia Scnrlatt Mnrrlas(FNh fin..YJ I I'_5 CST)
Janie S. Morales
Development Manager
OFFICIAL RECORD
CITY SECRETARY
ROW Encroachment Agreement-Commercial FT. WORTH, TX
PN20-00117
Licenscc
Licensee:
BARN GARSKA, INC.
Nni c: Jahn D. Garska
Title: Director
Date- —
STATE OF TEXAS §
COUNTY OFTARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
:jjLXAV , on this day personally appeared John D. Garska, Director, 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 Barnett and Gars ka, Ine., a corporation, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2- ' day of a Z� ,
24 V
No ry Public in and for the RY A�fi JO AYERS
r
COMM.RPIRES 5-fl6 2022
State of K K " V NOTARY ID 1242062p.g
ROW Encroachment Agreement-Commercial
PN20-001 l7 OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Scanned with CamScanner
t
REFUSE-2-11-L111ITED. Ll'
I1r. Jennings Street LLC:
a Texas limited leibility conilkiny, its general priner
By:� t.
Name:lames Clinton Bradley
Title: Co-N4anaging Member
Date: z - �z 1z - 2-
STATE O F TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
A� on this day personally appeared James Clinton Bradley, Co-Managing
Member of Jennings Street Management, LLC, general partner of Refuse-2-B-Limited
LP, 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 Refuse-2-B-Limited LP, a
limited partnership, and in the capacity therein stated.
GIVEN CINDER MY HAND AND SEAL OF OFFICE this :?-'2- day of
20 2-1
°A JO AYERS
COMM.EXPIRES 5-06-2022
NOTARY ID 12420620-6
No ry Public in and for the
State of -T
ROW Encroachment Agreement-Commercial
PN20-00117 OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Scanned with CamScanner
***THIS PAGE FOR CITY OF FORT WORTH OFFICE USE ONLY***
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, 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 3rd day of
March ,20 21 .
LAURIE Digitally signed by LAURIE
PEQUENO LEWIS PFVP 9 LAURIE PEQUENO LEWIS
PEQUENO LEWIS Date:2021.03.0308:55:25 = Notary Public
06'00' * * STATE OF TEXAS
Notary I.D.N9�eoF 1 Dec.80 5 2023
Notary Public in and for the State of Texas My Comm.Exp.
After recording return to:
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
OFFICIAL RECORD
CITY SECRETARY
ROW Encroachment Agreement-Commercial FT. WORTH, TX
PN20-00117
EXHIBIT A
Map of Easement and Encroachment
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PN20-00117 Revised 4/2020
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EXHIBIT B
Certificate of Insurance
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EXHIBIT C
Metes and Bounds or Location Description of the Property
Block 1, Granger's Addition
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