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HomeMy WebLinkAboutContract 54394-EC1 Date Received:Aug 24,2021 City Secretary Time Received:9.06 am Contact No: 54394-EC 1 ESTOPPEL CERTIFICATE TO: Bank OZK (together with its successors or assigns, "Lender") and 9TH AND COMMERCE FORT WORTH, LLC, a Delaware limited liability company ("Borrower") RE: That certain Public Right-of-Way Encroachment License Agreement entered into by and between THE CITY OF FORT WORTH, a home rule municipal corporation of Tarrant County, Texas (the "Efty") and Borrower, recorded as Instrument No. D220221541, in Official Records of Tarrant County, Texas (as amended and ratified from time to time, the "Encroachment License Agreement") Dated: August 23 , 2021 (the "Effective Date"). Ladies and Gentlemen: The following statements are made with the knowledge Borrower and Lender (individually and collectively, as applicable, the "Parties"), are relying on them in connection with the secured financing or contemplated secured financing of the real property legally described on the attached Exhibit A and commonly known as that parcel of land bein approximately 0.6320 acres located at the northeast intersection of Commerce Street and East 9 Street in Fort Worth, Tarrant County, Texas (collectively, the "Property"), and the Parties may rely on such statements for that purpose. Capitalized terns used herein but not otherwise defined shall have the meaning assigned to such term in the Encroachment License Agreement. The City hereby certifies, represents, warrants, covenants and agrees as follows as of the Effective Date of this estoppel certificate (this "Certificate"). 1. Authorization; Amendments. The City is the licensor under the Encroachment License Agreement, and the individual or individuals signing on behalf of the undersigned is or are respectively authorized to do so. There have been no amendments, modifications, revisions or supplements to the Encroachment License Agreement except as follows: None . 2. Full Force and Effect. The Encroachment License Agreement is in good standing and in full force and effect. 3. No Current Defaults or Disputes. Neither the Property nor the current owner of the Property is in default under the Encroachment License Agreement beyond any applicable cure period, and no event has occurred that, with the giving of notice or passage of time, or both, could result in such default. There is no pending or, to the undersigned's knowledge, threatened dispute or litigation between or among any of the parties to the Encroachment License Agreement or properties benefited or burdened by the Encroachment License Agreement. OFFICIAL RECORD Encroachment License Estoppel-Page 1 CITY SECRETARY 49265-883/Commerce St(Southern Land)-Ft Worth FT. WORTH, TX 4828-4257-2274v.3 49265-883 8/5/2021 4. Payments Current. All amounts due under the Encroachment License Agreement have been paid through the Effective Date of this Certificate and there are no unpaid amounts or liens with respect thereto on the Property. 5. Notice. The City agrees to provide Lender a contemporaneous copy of any default notice ("Default Notice") or other material written notice delivered by the City to Borrower in connection with the Encroachment License Agreement at the address below or at such other address as Lender may identify by delivering written notice thereof to the City subsequent to the Effective Date. If to Lender: Bank OZK 8300 Douglas Avenue Suite 900 Dallas, Texas 75225 Attn: Cliffton Hill With a copy to: Bank OZK 6th and Commercial P.O. Box 196 Ozark,Arkansas 72949 Attn: Regina Barker With a copy to: Winstead PC 500 Winstead Building 2728 N. Harwood Street Dallas, Texas 75201 Attn: Benjamin Leffler Lender may provide an alternative address (by written notice)to the City which alternative address shall be thereafter applicable with respect to notices from the City hereunder. 6. Intentionally deleted. 7. Foreclosure. For the avoidance of doubt, the right pursuant to Section 18 of the Encroachment License Agreement for a secured lender to assume all of Borrower's rights and obligations under the Encroachment and License Agreement within sixty (60) days of a foreclosure or assignment to a secured lender is intended to (and therefor shall) also apply to Lender's designee (in connection with a foreclosure or deed in lieu of foreclosure) or any third party purchaser at a foreclosure of the Property subject to all notice requirements and other provisions under the Encroachment and License Agreement. 8. Estoppel. The undersigned acknowledges that the Parties have requested the information contained herein for purposes of confirming and clarifying the status of the Encroachment License Estoppel-Page 2 49265-883/Commerce St(Southern Land)-Ft Worth 4828-4257-2274v.3 49265-883 8/5/2021 Encroachment License Agreement, and is relying (and will rely) on the truth and accuracy of the representations made herein and upon the authority of the undersigned to execute this Estoppel Certificate on behalf of the undersigned, in connection with the decision to finance (or not to finance) the Property. The undersigned shall be estopped from asserting any claim or defense against the Parties to the extent such claim or assertion is based upon facts which are contrary to those expressly contained herein if the Parties have acted in reasonable reliance upon such statements. 9. Counterparts; Facsimile and Electronic Transmission. To facilitate execution,this Certificate may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature and acknowledgment of, or on behalf of, each party, or that the signature and acknowledgment of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Certificate to produce or account for more than a single counterpart containing the respective signatures and acknowledgment of, or on behalf of, each of the parties hereto. Any signature and acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures and acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature and acknowledgment pages. This Certificate may be transmitted and/or signed by facsimile or e-mail transmission (e.g., "pdf' or "tif'). The effectiveness of any such documents and signatures shall, subject to applicable legal requirements, have the same force and effect as manually-signed originals and shall be binding on all parties to this Certificate. [SIGNATURE PAGES FOLLOW] Encroachment License Estoppel-Page 3 49265-883/Commerce St(Southern Land)-Ft Worth 4828-4257-2274v.3 49265-883 8/5/2021 EXECUTED as of the Effective Date. City of Fort Worth DJ Harrell 23,2021 08:44 CDT) D.J. Harrell, Director Development Services Approved as to form and legality: qw'j"w Melinda Ramos Sr. Asst. City Attorney Sect. Chief �o4�nnu�� Ordinance No. 24161-04-2020 p�F°FORra� 0 0 ATTEST: v o 00 0 )o° 00-�d 000000000 A Ronald P. Gonzales,Acting City Secretary City Secretary's Office 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. Janie Scarlett Morales OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Encroachment License Estoppel—Signature Page 49265-883/Commerce St(Southern Land)-Ft Worth 4828-4257-2274v.3 49265-883 8/5/2021 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Lot 1R, Block 116, of ORIGINAL TOWN OF FORT WORTH, an addition to the City of Fort Worth, Tarrant County, Texas, according to the map or plat thereof recorded in Cabinet B, Slide 3421, of the Plat Records of Tarrant County, Texas. EXHIBIT A,Legal Description 4828-4257-2274v.3 49265-883 8/5/2021 Exhibit A LEGAL DESCRIPTION RIGHT-OF-WAY ENCROACHMENT BEING a 2,648 square foot (0.0608 acre) tract (TRACT 1), a 522 square foot (0.0120 acre) tract (TRACT 2) and a 180 square foot (0.0041 acre) tract (TRACT 3) of land situated in the Mitchell Baugh Survey, Abstract No. 106, City of Fort Worth, Tarrant County, Texas; said tracts being part of E 8th Street (a 60-foot wide right-of-way), Commerce Street (an 80-foot wide right-of-way), E 9th Street (a 60-foot wide right-of-way) and Calhoun Street (an 80-foot wide right-of-way); said tracts being more particularly described as follows: TRACT 1 COMMENCING at a "+" cut in concrete found at the intersection of the northwest line of said E 9th Street and the northeast line of said Commerce Street; THENCE North 30°12'16" West, along the said northeast line of Commerce Street, a distance of 10.22 feet to the POINT OF BEGINNING; THENCE South 59°47'44" West, departing the said northeast line of Commerce Street, a distance of 9.50 fleet to a point for corner; THENCE North 30'12'16"West, a distance of 199.28 feet to a point for corner; THENCE North 59047'44" East, a distance of 66.41 feet to a point for corner; THENCE South 30'12'16" East, a distance of 4.00 feet to a point for corner; THENCE North 59"47'44" East, a distance of 39.00 feet to a point for corner; THENCE South 30012'16" East, a distance of 5.50 feet to a point for corner in the southeast line of said E 8th Street; THENCE South 59°47'44" West, along the said southeast line of E 8th Street, a distance of 95.91 feet to a "+" cut in concrete found for corner at the intersection of the said southeast line of E 8th Street and the said northeast line of Commerce Street; THENCE South 30012'16" East, along the said northeast line of Commerce Street, a distance of 189.78 feet to the POINT OF BEGINNING and containing 2648 square feet or 0.0608 acres of land, more or less. TRACT 2 COMMENCING at a "+" cut in concrete found at the intersection of the said northwest line of E 9th Street and the said northeast line of Commerce Street; THENCE North59°47'44" East, along the said northwest line of E 9th Street, a distance of 19.85 feet to the POINT OF BEGINNING; EXHIBIT "A" RIGHT-OF-WAY ENCROACHMENT MITCHELL BAUGH SURVEY, ABSTRACT NO. 106 CITY OF FORT WORTH TARRANT COUNTY, TEXAS Kimlev))) Horn 801 Cherry Street,Unit 11,#1 000 Tel.No.{617j 335-6611 Fort Worth,Texas 70102 FIRM#101IJ4040 WWWAimley-hOm.com Scale Drawn 6y Checked by, Date Proiect No. Sheet No. NIA MCB JBH 09/17/2019 1 064403909 1014 BILLINGSLEY,MICHAEL 9/17/2019 4:28 PM\WTWFP011DATAkPROJEC7IFTW_SURVEY1064403809-COMMERCE RESIDENTIALOW0064403809 901 COMMERCE_ENCROACHMENTS.6WG THENCE North 59*47'44" East, continuing along the said northwest line of E 9th Street, a distance of 174.00 feet to a point for corner; THENCE South 30°12'16" East, departing the said northwest line of E 9th Street, a distance of 3.00 feet to a point for corner; THENCE South 59°47'44" West, a distance of 174.00 feet to a point for corner; THENCE North 30°12'16" West, a distance of 3.00 feet to the POINT OF BEGINNING and containing 522 square feet or 0.0120 acres of land, more or less. TRACT 3 COMMENCING at a "+" cut in concrete found for the most easterly north corner of Lot 1 R, Block 116, Original Town of Fort Worth, an addition to the City of Fort Worth according to the plat recorded in Cabinet B, Slide 3421 of the Plat Records of Tarrant County, Texas; said point being in the southwest line of said Calhoun Street; THENCE South 29'53'46" East, along the said southwest line of Calhoun Street, a distance of 10.35 feet to the POINT OF BEGINNING; THENCE North 60°06'14" East, departing the said southwest line of Calhoun Street, a distance of 3.00 feet to a point for corner; THENCE South 29°53'46" East, a distance of 60.00 feet to a point for corner; THENCE South 60°06'14" West, a distance of 3.00 feet to a point for corner in the said southwest line of Calhoun Street; THENCE North 29°53'46" West, along the said northwest line of Calhoun Street, a distance of 60.00 feet to the POINT OF BEGINNING and containing 180 square feet or 0.0041 acres of land, more or less. NOTES Bearing system based on the Texas Coordinate System of 1983(2011 adjustment), North Central Zone (4202). A survey plat of even survey date herewith accompanies this metes & bounds description. The undersigned, Registered Professional Land Surveyor, hereby certifies that the foregoing description accurately sets out the metes and bounds of the encroachment tracts. EXHIBIT "A" RIGHT-OF-WAY ENCROACHMENT MITCHELL BAUGH SURVEY, Pt�..OF..T ABSTRACT NO. 106 ��..��etsT �a •s CITY OF FORT WORTH MICHAEL C. BILLINGSLEY REGISTERED PROFESSIONAL ' `•, TARRANT COUNTY, TEXAS LAND SURVEYOR NO. 6558 MICHAEL CLEOBILLINGSLEY 801 CHERRY STREET, UNIT 11 SUITE 1300 e'."p 6558 �Pr Kimlev))) Horn FORT WORTH, TEXAS 76102 OF E S 5�4,.' 0 801 Cherry Street,Unit 11,#1300 R Tel.No.(817)335-6511 PH. 817-335-6511 �� .S'U'R 4� FartWorth.Texas 761D2 FIRM N 10194040 wwwkim#ay-hom.com michaelbillingsley@kimley-horn.cam Scale ❑rraTbv Checkedbv Date Project No. Sheet No. NIA MCB J8H 0911712049 0114403801 2 OF 4 BILLINGSLEY,MICHAEL 9/17/2019 4:28 PM 14FTWFP010ATAIPROJEG-RFTW_SDRVEY1064403609-COMMERCE RESIDENTIALMM064403809 901 COMMERCE_ENCROACHMENTS.DWG Np�Ty 0 30 60 LEGEND I■II E 8TH STREET P.O.C.=POINT OF COMMENCING GRAPHIC SCALE IN FEET (A 60-FOOT WIDE RIGHT-OF-WAY) P.O.B.=POINT OF BEGINNING L4 L5 XF="+"CUT IN CONCRETE FOUND L6 L7 C.M.=CONTROLLING MONUMENT L8 XF(C.M,) L~I l j LLI � W F- ;. H = 17- FL q TRACT 1 I ! 0 I {/) r 0.0608 ACRES W a ce) 2,648 SQ. FT. °o _ LOT 1 R, BLOCK 116 XF(c.M.) J az L,LI o ORIGINAL TOWN OF TRACT 3 L15 C ) a FORT WORTH L16 ! Z (CAB. B, SL. 3421) ! O Q C) P.O B. P.O.B. TRACT 3 TRACT 3 rn 0.0041 ACRES TRACT 1 j 180 SQ. FT. L2 P.O.B. -' L10 TRACT 2 XF L11 L1 P.O.C. L14 TRACT2 L13 L1$ 0.0120 ACRES L12 XF(c,M.) 522 SQ. FT. E 9TH STREET TRACT'I & TRACT 2 (A 60-FOOT WIDE RIGHT-OF-WAY) NOTES Bearing system based on the Texas Coordinate System of 1983(2011 adjustment), North Central Zone (4202). A metes & bounds description of even survey date herewith accompanies this survey plat. The undersigned, Registered Professional Land Surveyor, hereby certifies that this plat of survey accurately sets out the metes and bounds of the encroachment tracts. EXHIBIT °Atr RIGHT-OF-WAY ENCROACHMENT MITCHELL BAUGH SURVEY, cf//� PEE. •..rF� ABSTRACT NO. 106 MICHAEL C. BILLINGSLEY ��G4 �4 d' CITY OF FORT WORTH REGISTERS© PROFESSIONAL ' : TARRANT COUNTY, TEXAS LAND SURVEYOR NO. 6558 MICHAEL CLEO BILLINGSLEY 801 CHERRY STREET, 655$•..•�,: UNIT 11 SUITE 1300 �Qr� KimlewoHorn FORT WORTH, TEXAS 76102 9 OF S 51�. ' 801 Cherry Street,Unit 11,#1300 Tel.No.(817)335-6511 PH. 817-335-6511 y4 .S' E� Fort worth,Texas 70102 FIRM 10194040 www.kirnley-hornxo , michaeLbillingsley@kimley-horn.com Scale Drawn by Checked by, Date ProiedNo. Shoal No. 1,=60' MCB JBH 04117I2019 064403809 3 OF 4 BILLINGSLEY,MICHAEL 9/17/2019 4:28 PM IIFTWFP0110ATA1PRO.1ECT1FiW SURVEY1064403809-COMMERCE RESIDENTIALIDWG1064403809 901 COMMERCE ENCROACHMENTS.DWG LINE TABLE NO. BEARING LENGTH L1 N30"12'16"W 10.22' L2 S59°47'44"W 9.50, L3 N30°12'16"W 199.28' L4 N59°47'44"E 66.41' L5 S30°12'16"E 4.00' L6 N59"47'44"E 39.00' L7 S30°12'16"E 5.50, L8 S59°47'44"W 95.91' L9 S30°12'16"E 189.78' L10 N59°47'44"E 19.85' L11 N59°47'44"E 174.00' L12 S30"12'16"E 3.00' L13 S59°47'44"W 174.00' L14 N30°12'16"W 3,00' L15 S29°53'46"E 10.35' L16 N60°06'14"E 3.00' L17 529'53'46"E 60,00, L18 S60°06'14"W 3.00' 1-19 N29°53'46"W 60.00' EXHIBIT "A" RIGHT-OF-WAY ENCROACHMENT MITCHELL BAUGH SURVEY, ABSTRACT NO. 106 CITY OF FORT WORTH TARRANT COUNTY, TEXAS Kimlev))) Horn 801 Cherry Street,Unit 11,#1300 Tel.No.(817)335-6511 Fort Worth,Texas 76102 FIRM#10194040 wwwJdmlay-hom.cam i Scale Drawn by Checked by Date Pro ed No. Sheet No. NIA MCB JEIH 09/1712019 064403809 4 OF 4 BILLINGSLEY,MICHAEL 911 7/201 9 4;28 PM 41FTWFP011DATAIPROJECTIFTW_SURVEY4064403809-COMMERCE RESIDENTIALOWG1064403809901 COMMERCE_ENCROACHMENTS.DWG cl�LL Z W L LL U ,0 � z Q U LL W - ?' z �< Gann--9nd) i33ais rvn—VO M1 ❑ ❑ El m I 1 p w w� w a _ 0 1 Ali s ili m m , o W Z W U„o Q O r 1 5 K U Z I, a W __________ o _ Z I I I W I. 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RECITALS WHEREAS, Licensee is the owner of certain real property 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 will encroach in, on, above,or below the Public Right-of-Way; and WHEREAS, to accommodate the needs of the Licensee, the City will allow the encroachment under the terns 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 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 building canopies, private drainage, bike racks, trash receptacles, fire detector checks and grease trap interceptor (the "Encroachment"). Upon completion of the ROIL'Encroachment Agreement-Commercial Page I of 12 Revised 4/2020 Encroachment, Licensee agrees to be responsible for maintaining the Encroachment within the Public Right-of-Way. Licensee shall not expand 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. The City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Encroachment installed by Licensee,but City will 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 Right-of-Way to a ROW Encroachment Agreement-Commercial Pate 2 of 12 Revised 4(2020 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 that if this Agreement terminates and Licensee fails to remove the Encroachment as directed and restore the Public Right-of-Way, Licensee hereby gives City permission to remove the Encroaclunent and any supporting structures and assess a lien on the Property for the costs expended by the City in taking such actions. b. In order to defray all costs of inspection and supeiwision 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 contniunication, 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. ROW Encroachment Agreement-Commercial Page 3 of 12 Revised 4,12020 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 $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 inunediately 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. 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 ROW Encroachment agreement-Commercial Page 4 of 12 Revised 4/2020 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. I1. 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 onvssions 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 which a third-party may have an interest. Licensee agrees that it will obtain all necessary permissions before occupying such property. 16. ROW Encroachment Agreement-Commercial Page S of 12 Reprised 4/2020 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 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 dr.rti and obligations hereunder t)o 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 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] ROW Encroachment Agreement-Commercial Page 6 of 12 Revised 4%2020 City: Licensee: CITY OYFORT WORTH 9T11 AND COMMERCE FORT WORTH,LLC By: Da!, (A�g21,20201;r4CDT) a Delaware limited liability company DJ Harrell, Director Development Services Director By: Southern Land Company, LLC, Date: August 21,2020 a Tennessee limited liability company its managing member By: SLC Holding Company, LLC, a Delaware limited liability company its sole member By: 7—)- Name:-Biian S:Sewol Title: President Date: L Y e- ATTEST: Approved As To Form and Legality ry (/ Akff Murr�v Matt Murray(Aug 2I,7.020 08;17 C©?) Mary Kayser,City Secretary FWBC Sec. 3210 City Secretary's Office Matthew A. Murray Assistant City Attorney 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. G` Laurie Lewis Interim Development Manager ROW Encroachment Agreement-Commercial Page 7 of 12 Revised 4/2020 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 D1 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 21stday of August 1-202Q _ LAURIE signed LAURIE vP LAURIE PEQUENO LEWIS PEQUENO LEWIS � �s� PEQUENO LEWIS ATEPublic Date:2020.08.2111:45:37 zNotary * • STATE OF TEXAS os'oo' Notary 9�OF P .132278952 My Comm.DExp.Dec710,2023 Notary Public in and for the State of Texas After recording return to; Development Services Department Development Coordination Office 200 Texas Street Fort Worth,Texas 76102 ROW Encroachment Agreement-Commercial Page 8 of 12 Revised 4f2020 STATE OF § COUNT'OF § BEFORE ME, the undersigned authority, a Notary Public in and for the State of ne ah-this day personally appeared Brian S. Sewell, President of SLC Holding Company, LLC, a Delaware limited liability company, the sole member. of Southern Land Company, LLC, a Tennessee limited liability company, the managing member of 9th and Commerce Fort Worth, LLC, a Delaware limited liability company, 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 9TH AND COMMERCE FORT WORTH, LLC,-a- elawar_e limited liability company, and in the capacity therein stated. GIVEN UND ER MY HAND AND SEAL OF OFFICE this 22 day of I 2020. Notary Public in and for the STAB °•���, s : 'Ie OF `C State of rt - _ ? TENNESSEE NOTARY � . ;, � '•,PUBUC d, is7R®JCS�e�•~ 'r®1eel400 My COMMWO DPW May 20,2024 ROW Encroachinent Agreement-Conunercial Page 9 of 12 Revis ed 4/2020 EXHIBIT A Map of Easement and Encroachment ROW Encroachment Agreement-Commercial Page 10 of 12 Revised 4/2020 o LL r it U- 0 0 1 LLU w a 4, A3 lr- 'd 0VE ---------- ---------------- L---------- - -- ii M L-j I . .. ........... mz svx3i'H1aoMiaoj 3o ul° IS 30a3WW00 W6 N did �o au�o�<{ ]���� � =sr S1N3WNVE)N1A d'1J3l Ainii l llvd3AO � °�w01'' 1332i1S ONtl�JNIAtld�2i3M3S �U ANVIINVS'H3lVM onand .a3ro� 1, 777 13 fs i! ]iliio Hi j3u�R ��€ ffe 3" g3 '4 0 rc W I. "�q�q"i < ��5��4 g:3�K MP�1! r < i Mt'6, € 3b8 � in g � g ae� r: e�oil jG E a53 3 3 g o a ° 3 2� x� LLgs l gi .8 y Zvw sG3 La w z �� 2ar i 253,:aga T H " I e I I I 1 I I I I , Y W g, a 21 1 ® Ii F w to W I 110 1 _S3_Y@S4� 3 2 .6 1 / I. > \ i 3 2 e^1 gg 51 COMMESTREET �141 ED 47 X x x F x x x x >< x X x .l9 31t9 SNC19A3i � SVX31'N12fOM laOi i0 A110 ¢ NVId fp io��«�ry��'� o k,�wss+r S1N3W3AOadWI 1HJI1 a31VM 03SOdOlid t .i V 1332i1S ONV 9NIAVd'1:13M3S U meco+ro AaV11NVS'a31VM onand Pik94. gzA�� 29 = o q �d ��` C tab � $ Y 3 �- Y E � � � F3�`-C3x• i § 3 3 3 z $ �ii $�c 33 $EY sa 2 I I 2 --- --------------- ---------J L--- g, a g HIM ^� I , �..—. —•. CALHOUNSTREET A �� '';,.I i — ;gj�l$ t f p. w. � I 4 a� °e.s3o2631E - ---- 1 Lgx i Q A3 g $ Sx € £ 4 11 $ 1 Z ru 11 1 F OA'dMERCESTREET `Q 114 IL R x z• x tt x svx91,H12JOMIUW A 0"0 IS 30'd3V4VYOO M Z7, SINWBAONMI IHOII 33UIS(INV ONIAW'�GMM uJOH(<(Aalw.rA WdSMM-3dVJSI�HLS sameroo k21VIINVSlj31vm onand S LLJ ao <H4 E z Aj LU V) P, mq co f OR116 L) 19.981S NnOHIVD —t A- 0 iF HE -D--- id hl i I i _. V iF �-. - - cc> kLL III ——————-?-L --- ——— P-9 oi6 8 g I I 2 v 1398H 3:)a3wwoo ­ Z 68 62 2.i i a'i -� � U Z Eb 2 6 0 2 4N H C < 0 -------- 14 OHM 4j H =tj E MEET mc 0 c C � 0 G LLJ 2 (D Id DA it i W A 10 H" "H 1:1A�s 1" � ps� M, bf 5z. se I � I 2 i ij f Al g li AT COMMERCE STREET di EXHIBIT B Certificate of Insurance ROW Encroachment Agreement-Commercial Page 11 of 12 Revised 4/2020 EXHIBIT C Metes and Bounds or Location Description of the Property ROW Encroachment Agreement-Commercial Page t2 of 12 Revised 4/2020 LEGAL DESCRIPTION RIGHT-OF-WAY ENCROACHMENT BEING a 8,756 square foot (0.2010 acre) tract of land situated in the Mitchell Baugh Survey, Abstract No. 106, City of Fort Worth, Tarrant County, Texas; said tracts being part of E 8th Street (a 60-foot wide right-of-way), Commerce Street (an 80-foot wide right-of-way), E 8th Street (a 60-foot wide right-of-way), E 9th Street (a 60-foot wide right-of-way) and Calhoun Street (an 80-foot wide right-of-way); said tracts being more particularly described as follows: BEGINNING at a point at the intersection of the northeast right-of-way line of Commerce Street and the northwest right-of-way line of E 9th Street; THENCE North 59°47'44" East, along the said northwest line of E 9th Street, a distance of 200.00 feet to a "+" cut in concrete found for corner at the intersection of the said northwest line of E 9th Street and the southwest right-of-way line of Calhoun Street; THENCE North 29°53'46" West, along the said southwest line of Calhoun Street, a distance of 74.95 feet to a point for corner; THENCE North 59°38'51" East, departing the said southwest line of Calhoun Street, a distance of 11.52 feet to a point for corner; THENCE South 30°27'29" East, a distance of 90.36 feet to a point for corner; THENCE South 59°29'20"West, a distance of 222.46 feet to a point for corner; THENCE North 30°31'55"West, a distance of 231.52 feet to a point for corner; THENCE North 59°36'00" East, a distance of 204.25 feet to a point for corner; THENCE South 30°24'00" East, a distance of 5.00 feet to a point for corner; THENCE South 59°36'00"West, a distance of 92.84 feet to a point for corner; THENCE South 30°12'16" East, a distance of 10.33 feet to a point for corner in the southeast right-of-way line of E 8th Street; EXHIBIT "A" RIGHT-OF-WAY ENCROACHMENT MITCHELL BAUGH SURVEY, ABSTRACT NO. 106 CITY OF FORT WORTH TARRANT COUNTY, TEXAS Kimlev* Horn 801 Cherry Street,Unit 11.#1300 Tel.No.(817)335-6511 Fort Worth,Texas 76102 FIRM#10194040 wwr.kimley-horn.com Scale I Dram by I Checked by Date Project No. I Sheet No. N/A MCS JBH 1 6/15/2020 1 064403809 1 OF 3 BILLINGSLEY,MICHAEL 6/1 512020 1 2:39 PM K:\FTW_SURVEY\064403809-COMMERCE RESIDENTIAL\DWG\064403809 901 COMMERCE_ENCROACHMENTS.DWG THENCE South 59°47'44"West, along the said southeast line of E 8th Street, a distance of 100.00 feet to a "+" cut in concrete found for at the intersection of the said southeast line of E 8th Street and the said northeast line of Commerce Street; THENCE South 30o12'16" East, along the said northeast line of Commerce Street, a distance of 200.00 feet to the POINT OF BEGINNING and containing 8,756 square feet or 0.2010 acres of land, more or less. LINE TABLE NO. BEARING LENGTH L1 N59.47'44"E 200.00' L2 N29°53'46'W 74.95' L3 N59`38'51"E 11.52' L4 S30°27'29"E 90.36' L5 S59'29'20"W 222.46' L6 N30'31'55'W 231.52' L7 N59°36'00"E 204.25' L8 S30°24'00"E 5.00' L9 S59°36'00"W 92.84' L10 S30'24'00"E 10.33' L11 S59'47'44"W 100.00' L12 j S30°1716"E j 200.00' NOTES Bearing system based on the Texas Coordinate System of 1983(2011 adjustment), North Central Zone (4202). A survey plat of even survey date herewith accompanies this metes & bounds description. The undersigned, Registered Professional Land Surveyor, hereby certifies that the foregoing description accurately sets out the metes and bounds of the encroachment tract. EXHIBIT "A" RIGHT-OF-WAY ENCROACHMENT • . MITCHELL BAUGH SURVEY, OF TF, ABSTRACT NO. 106 '�P••' GISTE MICHAEL C. BILLINGSLEY 'd' CITY OF FORT WORTH REGISTERED PROFESSIONAL *: * TARRANT COUNTY TEXAS LAND SURVEYOR NO. 6558 MICHAEL O EO L BILLINGSLEY UN CHERRY STREET, Kirle >>> Horn UNIT 11 SUITE 1300 �.,0 6558 FORT WORTH, TEXAS 76102 �9 F E S SOo� 801 Cherry Street,Unit 11,#1300� Tel.No.(817)335-6511 PSI. 817-335-6511 N0'.............Ey Fort Worth,Texas 76102 FIRM 4 10194040 vM .kimley-horn.com o. michael.billingsley@kimley-horn.com Scale Dram MC6 Checked by Date Pro06440t80. Sheet 3 N/A MCB JBH 6/15/2020 064403809 2 OF 3 BILLINGSLEY,MICHAEL 6/15/2020 12:40 PM K:\FTW_SURVEY\064403809-COMMERCE RESIDENTIAL\DWG\064403809 901 COMMERCE_ENCROACH MENTS.DWG �ORTh LEGEND 0 30 60 P.O.B.=POINT OF BEGINNING E 8TH STREET XF="+"CUT IN CONCRETE FOUND GRAPHIC SCALE IN FEET (A 60-FOOT WIDE RIGHT-OF-WAY) C.M.=CONTROLLING MONUMENT L7 00 J L9 _ } L 11 L10 XF(C.M.) wWF- O LI UJ < � _ 0-1 2 O 1-- o LL1 ' N = U- `-J LOT 1 R, BLOCK 116 — e Q 00 W a ORIGINAL TOWN OF C) FORT WORTH _ _ L3 00 (CAB. B, SL. 3421) 0 g RIGHT-OF-WAY ENCROACHMENT N 0.2010 ACRES J P.O.B. 8,756 SQ. FT. XF L1 (c.M.) L5 E 9TH STREET (A 60-FOOT WIDE RIGHT-OF-WAY) NOTES Bearing system based on the Texas Coordinate System of 1983(2011 adjustment), North Central Zone (4202). A metes & bounds description of even survey date herewith accompanies this survey plat. The undersigned, Registered Professional Land Surveyor, hereby certifies that this plat of survey accurately sets out the metes and bounds of the encroachment tract. EXHIBIT "A" RIGHT-OF-WAY ENCROACHMENT MITCHELL BAUGH SURVEY, �E OF .. ABSTRACT NO. 106 '�P•' G1STE _',9 MICHAEL C. BILLINGSLEY CO �� �'�s CITY OF FORT WORTH REGISTERED PROFESSIONAL *'. �* TARRANT COUNTY, TEXAS LAND SURVEYOR NO. 6558 MICHAEL CLEO BILLINGSLEY CHERRY STREET, UN ..........6558..... . '.. Kilev* Hornm UNIT 11 SUITE 1300 ��0,� P.;•r FORT WORTH, TEXAS 76102 �9�;•�F E S S�� l o� 801 Cherry Street,Unit 11,#1300 Tel.No.(817)335-6511 PH. 817-335-6511 D S R Fort Worth,Texas 76102 FIRM#10194040 vrrrw.kimley-horn.com Scale Dra—by I Checked by Date Proiect No. Sheet No. michael.billingsley@kimley-horn.com 1'=60' MCB JBH 6/15/2020 064403809 3 OF 3 BILLINGSLEY,MICHAEL 6/15/2020 12:41 PM KAFTW_SURVEY\064403809-COMMERCE RESIDENTIAL\DWG\064403809 901 COMMERCE_ENCROACHMENTS.DWG •say MARY LOUISE NICHOLSON COUNTY CLERK 100 West Weatherford Fort Worth,TX 76196-0401 . >r •. ''} PHONE(817)884-1195 CITY OF FORT WORTH 200 TEXAS ST FT WORTH, TX 76102 Submitter: CITY OF FORT WORTH CFA OFFICE DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: 9/3/2020 8:17 AM Instrument# D220221541 A 22 PGS $99.00 By: t D220221541 ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.