HomeMy WebLinkAboutContract 55549Date Received: 04/12/2021
Time Received: 1:31 pm
City Se cre tary
Numbe r: 55549
PUBLIC PROPERTY RIGHT-OF-WAY ENCROACHMENT LICENSE
AGREEMENT
TIER 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 tl�rough its duly authorized City Manager, Assistant City Manager, or
Director of the Development Services Department, and BASIC BAR FORT WORTH,
INC., a Texas for-profit corporation, FWR 903 THROCKMORTON, LLC, a limited
liability company, and FWR 910 HOUSTON, LLC, a limited liability company,
(collectively the "Licensee") the tenant and owners of the real property located at 904
HOUSTON STREET, Fort Worth, Texas 76102 ("Property"), each acting by and
through its duly authorized representative.
RECITALS
WHEREAS, Basic Bar Fort Worth, Inc. is the tenant of the real property located
at 904 Houston Street, Fort Worth, Texas 76102 ("Property"), being more particularly
described in the attached Exhibit "A" which is incorporated herein for all purposes; and
WHEREAS FWR 903 Throckmorton, LLC and FWR 910 Houston LLC are the
owners of the Condominium Unit Number 903 and Limited Common Elements, together
with an undivided interest in the General Common Elements, located in the Property and
being a part of Houston Place Lofts Condominiums, a Condominium Project to the City
of Fort Worth, Tarrant County, Texas, as fully described and as located, delineated, and
defined in the Condominium Declaration, together with the Survey Plat, Bylaws,
Amendments and E�ibits attached thereto and recorded 'm Volume 26, Page 92 of the
Condominium Records of Tarrant County, Texas; and
WHEREAS, the City owns a sidewalk (the "Public Property") adjacent to the
Property as shown in an original plat that was lost when the Tarrant County Courthouse
burned down in 1875 and as more fully explained in the attached Exhibit "B," 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 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:
aFFICIAL RECORD
TierIROW EncroachmentAgreement CITY SECRETARY
PN21-oo043 FT. WORTH, TX
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 constructmg,
installing, and maintaining a blade sign (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 the
Encroachment to further infringe in or on the Public Property beyond what is specifically
described in Exhibit "C."
2.
All construction, mstallation, maintenance, and operation of the Encroachment
and the use or occupancy of the Public Property 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, shall 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 mstallation, reinstallation,
relocation, or repair of any e�sting 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 e�stence of the Encroacl�ment 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 for the health, safety, and
Tier I ROW Encroachment Agreement Page 2 of 16
PN21-00043 Revised 11/2020
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 miniinize 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 with then-e�sting City regulations and policies. It is understood and agreed
to by Licensee that if this Agreement terminates and Licensee fails to remove the
Encroacl�ment 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 mcur as a result of the construction, mamtenance, 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, commencmg 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 City may, at its sole option, allow the Agreement
to remain in effect so long as Licensee has taken reasonable measures to cure the
noncompliance or is continuing to diligently attempt to remedy the noncompliance.
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
Tier I ROW Encroachment Agreement Page 3 of 16
PN21-00043 Revised 11/2020
at any time durmg 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 m 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, 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 "C."
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 "D" and incorporated herein for all purposes. Licensee agrees, binds, and
Tier I ROW Encroachment Agreement Page 4 of 16
PN21-00043 Revised 11/2020
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
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 the county in which the Encroacl�ment is located. 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 m 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 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 performmg 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 permittmg Licensee to construct, maintain, and locate the Encroacl�ment 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-party may have an interest. Licensee agrees that it will obtain all necessary
permissions before occupying such property.
16.
Tier I ROW Encroachment Agreement Page 5 of 16
PN21-00043 Revised 11/2020
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.
The parties agree that the duties and obligations contained 'm 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 writmg of such
assignment, which approval shall not be unreasonably conditioned or witl�held.
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 siYty (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.
Z1.
This Agreement may be executed in multiple counterparts, each of which shall be
considered an origmal, but all of which shall constitute one instrument
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Tier I ROW Encroachment Agreement Page 6 of 16
PN21-00043 Revised 11/2020
City:
CITY OF FORT WORTH
4-Fo/f By:DJ Harrell (Apr 9, 202110 :35 CDT)
D.J. Harrell, Director of the
Development Services Department
Date: 4-9-2021
ATTEST:
City Secretary
Tier I ROW Encroachment Agreement
PN21-00043
Approved As To Form and Legality
MNtl,,w-Murr� Matthew Murray {Apr 9, 202110:6 COT)
Matthew A. Murray
Assistant City Attorney
Ordinance No. 24161-04-202 0
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.
"7a111e Sctlrtett ;!/pta/ar
Janie Scarlett Morales (Apr 8, 202115:33 CDT)
Janie Morales
Development Services
Page7 of16
Revised 11/2020
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 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 9th �y of
April , 20 21 _
Jen n ifer L Digitally signed byJennifer L
Ezernack
Ezernack Date:2021.04.0912:54:49-OS'00'
Notary Public in and for the State of Texas
o,�p,RY/'ve, JENNIFER L. EZERNACK
_ q � Notary Public
* �f7 + STATE OF TEXAS
NT ��� Q Notary I.D. 130561630
9�FOF�+ My Comm. Exp. Mar. 1, 2024
After recording return to:
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76012
Tier I ROW Encroachment Agreement
PN21-00043
aFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Licensee:
BASIC BAR FORT WORTH, INC.
a Texas for-profrt corporation
By:
Name: Andrew Fitzhugh
Title: �(�
Date: 3 f '�{Za'Lj
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 Andrew Fltzhugh, v;« pft i (Title) known to me to be
the person whose name is subscrbed 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 Basic Bar Fort Worth, Inc., a Texas for-profit corporation, and in the capacity therein
stated.
GIVEN LTNDER MY HAND AND SEAL OF OFFICE this 1'� �'4' day of
Mo�'c�r+ , 20 11
� �/�G��J`� � JAY
� Kitty Clark 8e er
�h�! �e
►_ . Mvcommis�ionE�;res
Nota Public m and for the �..� •°'� °"�0'�
ry �� �o No ,s,a,e37s
State of T��o►5
Tier I ROW Falcroachrr�ent Agrecment
PN21-00043
aFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Licensee:
BASIC BAR FORT WORTH, INC.
a Texas for-profrt corporation
By: /"� � —
�—
Name: Jon Graham Jackson
Title: ?(`�t5'� � �..,_�--
Date: 3� 2�S � ZI
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 Jon Graham Jackson, ��t3 �dp�,� (Title) known to me to
be the person whose name is subscnbed 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 Basic Bar Fort Worth, Inc., a Texas for-profit corporation, and in the capacity
therein stated.
GIVEN IINDER MY HAND AND SEAL OF C►FFICE this 'Ls� day of
Mo.fiL1n , 20 Z1
C��`����� �\�� �r '' Kitty Clark Berger
�� . � My Commission Expires
�;,�� ,�p 01/13/2022
Notary uhlic in and for the '�ir��� �D No t314t8378
State of ��•S
Tier I ROW Faicroachment Agreement
PN21-00043
aFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Licensee:
FWR 910 HOUSTON, LLC
a limited liability company
By. G./� .�- /
Name: n Roberts
Title: Manager
Date: ��15 r�'�-�
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 Me('qo,v. (=�olo¢+f`�'S ,
Me,tnKaQ,C' (Title) 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
FWR 910 HOUSTON, LLC, a limited liability company and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE tivs Z�th
day of
Mo►cc,1n .20 'L�
Notary ublic in and for the
State of 1�.Xo,S
Tier I ROW Faicroachment Agreement
PN21-00043
g�Y'� Kitty Clartc Berger
� `� My Commission Eupires
��., : r 01 R3l20?2
�pF't�
ID No 131418378
aFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Licensee:
FWR 903 THROCKMORTON, LLC
a limited liability company
By: � - �
Name: Mo n Roberts
Title: Manager
Date: 3 � tiS �'so�.l
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
, on this day personalty appeared N`�ar+ F-�e�'+S >
I'�a►v►o►qQ.�' (Title) known to me to be the person whose name is
subscnbed 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
FWR 903 THROCKMORTON, LLC, a limited liability company and 'm the capacity
therein stated.
GIVEN LTIVDER MY HAND AND SEAL OF OFFICE this �S �` day of
1Nt�t!`c� , 20 ti �
,
'' r
✓ �•-- .., Kitty Clark Berger
�':
e. � �Y � o �onExpires
Nota Public in and for the �'��'� �� 10 No 73'7498376
rY '���
State af �L.�AS
Tier I ROW Fxicroachment Agreement
PN21-00043
aFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
EXHIBIT A
Description ofthe Licensee's Property
Condominium Unit Number 903 and Limited Common Elements, together with an
undivided interest in the General Common Elements, located in and being a part of
Houston Place Lofts Condominiums, a Condominium Project to the City of Fort Worth,
Tarrant County, Texas, as fully described and as located, delineated, and defined in the
Condominium Declaration, together with the Survey Plat, Bylaws, Amendments and
E�bits attached thereto and recorded in Volume 26, Page 92 of the Condominium
Records of Tarrant County, Texas and being located at 904 Houston Street, Fort Worth,
TeXas 76102
Tier I ROW Encroachment Agreement Page 13 of 16
PN21-00043 Revised 11/2020
EXHIBIT B
Depiction of the Public Property
Tier I ROW Encroachment Agreement Page 14 of 16
PN21-00043 Revised 11/2020
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EXHIBIT C
Depiction and description ofthe Encroachment
Tier I ROW Encroachment Agreement Page 15 of 16
PN21-00043 Revised 11/2020
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EXHIBIT D
Certificate ofInsurance
Tier I ROW Encroachment Agreement Page 16 of 16
PN21-00043 Revised 11/2020