HomeMy WebLinkAboutContract 55532Date Received: 04/08/2021
Time Received: 10:46 a m
Permit Number: PN21-00037
City Contract No.; 55532
PUBLIC PROPERTY RIGHT-QF-WAY ENCROACHMENT LICENSE
AGREEMENT
7YI:Y2 I
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 Director of
the Development Services Department, and JERRY J. LOFTIN, a(n) Individual
("Licensee").
RECITALS
WHEREAS, Licensee is the owner of the real property located at 114 Main Street, Fort
Worth, Texas 76102 ("Property"), being more particularly described in the attached
Exhibit ��A" which is incorporated herein for all purposes; and
WHEREAS, the City owns sidewalks (the "Public Property") adjacent to the Property
as shown in the attached Exhibit "B," which is incarporated herein for all purposes, and
as recorded in the deed records of Tarrant Caunty by Document Number 000524442
Volume: 0007516 Page: 01413; and
WHEREAS, Licensee desires to construct, place, and maintain certain improvements
which will encroach in, on, above, or below the Public Property; 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 Property as described in and at the location shown on
Exhibit "C," but only to the extent shown thereon, for the purpose of constructing,
installing, and maintaining three blade signs (the "Encroachment"}. Upon completion
of the Encroachment, Licensee agrees to be responsible for maintaining the
Encroachment within the Public Property. Licensee shall not expand or otherwise cause
Tier I ROW Encroachment Agreement
PN21-00037
Page 1 of 13
Revised 11/2020
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
the Encroachment to further infringe in or on the Public Property beyond what is
specifically described in Exhibit "C."
2.
All construction, installation, maintenance, and operation of the Encroachment and the
use or occupancy of the Fublic Properly shall comply with and be performed in strict
compliance with this Agreement and with the charter, ordinances, codes, and policies of
the City. Prior to the construction or installation of the Encroachment, Licensee shall
submit all plans and specifications to the Director of the Development Services
Department or duly authorized representative. Licensee shall not commence construction
or installation of the Encroachment nor make any use of the Public Property until after
the execution of this Agreement.
3.
Licensee, at no expense to the City, shaii make proper provisions for the relocation and
installation of any existing or future utilities affected by such Encroachment and the use
and occupancy of the Public Property, 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, reinstailation, 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 of Public Property, Licensee
shall pay to City an additional amount equal to such additional cost as determined by the
Director of Transportation and Public Works, the Director of the Water Department, the
Director of the Development Services Department, or their duly authorized
representative.
4.
Licensee agrees that City may enter and utilize the Public Property at any time for any
public purpose, including installing, repairing, replacing, or maintaining improvements to
its public facilities or utilities necessary far the health, safety, and welfare of the public.
The City shall have no responsibility or liability for any damages related to the
Encroachment resulting from the City's use of the Public Property; however, the City
shall 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 Property to a condition
acceptable to the Director of Transportation and Public Works, the Director of the Water
Department, the Director of the Development Services Department or their duly
authorized representative. Any such removal of the Encroachment shall be in accordance
Tier I ROW Encroachment Agreement
Page 2 of 13
PN21-00037
Revised 11/2020
with then-existing City regulations and policies. It is understood and agreed to by
Licensee that if this Agreement terminates and Licensee fails to remove the
Encroachment and restore the Public Property, Licensee hereby gives City permission to
remove the Encroachment and any supporting structures from the Public Property, to
restore the Public Property, and to 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
Encroachment and use of Public Property as 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}.
7.
The term of this Agreement shall be for thirty (30) years, commencing on the date this
Agreement is executed by City. However, the City may terminate this Agreement upon
Licensee's noncompliance with any of the terms of this Agreement. CiTy shall notify
Licensee in writing of any such noncompliance and if Licensee does not cure the
noncompliance within thirty (30) days of notice from City, the City may terminate this
Agreement. However, the Cify may, at its sole option, allow the Agreement to remain in
effect so long as Licensee has taken reasanable measures to cure the nancompliance or is
continuing to diligently attempt to remedy the noncampliance.
8.
It is further understood and agreed between the parties hereto that the Public Property to
be used and encroached upon is held by City as trustee for the public; that City exercises
such powers over the Public Property 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 Property 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
Property 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 both the Encroachment and the public purpose.
9.
LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS,
Tier I ROW Encroachment Agreement
PN21-00037
Page 3 of 13
Revised 11/2020
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 ENCRt�ACHMENT 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 "C." The amounts
of such insurance shall be not less than
$1,000,044
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 "D" and incorporated herein for all purposes. 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 restoration of the Public Property. All insurance coverage
required herein shall include coverage of all Licensee's contractors and subcontractors.
I1.
Tier I ROW Encroachment Agreement
PN21-00037
Page 4 of 13
Revised 1 i/2Q20
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 the county in which the Encroachment is located. After being
recorded, the original shall be returned to the City Secretary of the City of Fort Worth.
i2.
Licensee agrees to comply fuily 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 use of the Public Property.
13.
Licensee agrees to pay promptly when due all fees, taxes, or rentals provided for by this
Agreement ar by any federal, state, or locai 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 af 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 purpase of
permitting Licensee to construct, maintain, and locate the Encroachment over or within
the Public Property and is not a conveyance of any right, title, or interest in or to the
Public Property, nor is it meant to convey any right to use or occupy property in which a
third-pariy may have an interest. Licensee agrees that it will obtain all necessary
permissions before occupying such properly.
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.
Tier I ROW Encroachment Agreement
Page 5 of 13
PN21-0003 7
Revised I1/2020
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 hinding 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]
Tier I ROW Encroachment A�-eement
PN21-00037
Page 6 of 13
Revised 11 /2020
CiTy:
CITY OF FORT WORTH
By:
��
D.J. Harrell, Director
Development Services Department
Date: 4-2-2021
ATTEST:
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Licensee:
JERRY J. LOFTIN
By: { v" ��"
Name: rry J. Loftin
Title: Owner
Date: '(Yl (� � C � � `-� c� D �-�
Approved As To Form and Legality
�����-�-M���y
City Secretary Matthew A. Murray
Assistant City Attorney
Ordinance No. 24161-04-2020
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.
�7q�rie S��Gett�lo�q�ef
Janie S. Morales
Development Services
Tier I ROW Encroachment Agreement
PN21-00037
Page 7 of 13
Revised 11/2020
OFFICIAL RECORD
CITY SECRETARY
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 D.J. Harrell, known to me to be the person whose name
is subscribed to the foregoing instrument, and acknowledged to me that he executed the
sarne 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 2nd day of
April , 20 21 .
Jennifer L DigitallysignedbyJenniferL
Ezernack
Ezernack Date:2021.04.0609:16:06
-OS'00'
Notary Public in and for the State of Texas
After recording return to:
Development Services Bepartment
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
Tier I ROW Encroachment Agreement
PN21-00037
Page 8 of 13
Revised l l/2020
o,�p,RY/'ve, JENNIFER L. EZERNACK
_ � Notary Public
* � + STATE OF TEXAS
NT G� Q Notary I.D. 130561630
9�F�F�+ My Comm. Exp. Mar. 1, 2024
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
�, on this day personally appeared Jerry J. Loftin, Owner, 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 Jerry J. Lo�tin, and in the capacity therein stated.
GIVEN LTNDER MY HAND AND SEAL OF OFFICE this C� ��"-� day of
1.
Notary �ubl�c � �uxd"for the
State of
Tier I ROW Encroachment Agreement
PN21-0003 7
��� �I,�ld� � ' ` �
�,Z��
.'�' "e.e BRENDA MURRAY
° r Notary ID lt11594367
r - My Commission Excpires
"'r �;,J' May 24, 2023
Page 9 of 13
Revised 11/2Q20
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
EXHIBIT A
Description of the Licensee's Property
Tier I ROW Encroachment Agr em t
Page ] 0 of 13
PN21-0003 7
Revised 11/2020
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EXHIBIT B
Description of the Public Property
FORT WORTH ORIGINAL TOWN, BLOCK 7, LOT 8
Tier I ROW Encroachment Agreement
Page 11 of 13
PN21-00037
Revised 11/2020
EXHIBIT C
Depiction and description of the Encroachment
Tier I ROW Encroachment Agreement
PN21-00037
Page 12 of 13
Revised 11/2020
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EXHIBIT D
Certificate of Insurance
Tier I ROW Encroachment Agreement
PN21-00037
Page 13 of 13
Revised 11/2020