HomeMy WebLinkAboutContract 56523 Date Received: 10/21/2021 Permit Number: PN20-00127
Time Received: 11:25 am City Secretary No.: 56523
PUBLIC PROPERTY RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT
TIER II
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 New Orleans Storage and Warehouse Company, Ltd a(n) Louisiana corporation
("Licensee"), acting by and through its duly authorized Director.
RECITALS
WHEREAS, Licensee is the owner of the real property located at 7901 Will Rogers Blvd, Fort
Worth, Texas 76140("Property"), being more particularly described in the attached Exhibit "A" which
is incorporated herein for all purposes; and
WHEREAS, the City owns a street, alley, sidewalk, and/or other public right of way (the
"Public Property") adjacent to the Property as shown in the attached Exhibit "B," which is
incorporated herein for all purposes, and as recorded in the deed records of Tarrant County by
instrument number D220139087; 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 a conduit in city right of way (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."
OFFICIAL RECORD
CITY SECRETARY
Tier II ROW Encroachment Agreement P
PN20-00127 Revis FT. WORTH, TX
2.
All construction, installation, 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
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 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 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 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.
Tier II ROW Encroachment Agreement Page 2 of 13
PN20-00127 Revised 11/2020
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 Seven 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, 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 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, 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 HIND 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
Tier II ROW Encroachment Agreement Page 3 of 13
PN20-00127 Revised 11/2020
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 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 Encroachment 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 in connection with the construction, operation, and maintenance of
the Encroachment and use of the Public Property.
Tier II ROW Encroachment Agreement Page 4 of 13
PN20-00127 Revised 11/2020
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 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.
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 duties and obligations hereunder upon City's approval in writing of
Tier II ROW Encroachment Agreement Page 5 of 13
PN20-00127 Revised 11/2020
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]
Tier II ROW Encroachment Agreement Page 6 of 13
PN20-00127 Revised 11/2020
City: Licensee:
CITY OF FORT WORTH NEW ORLEANS COLD
STORAGE AND WAREHOUSE
COMPANY LTD.
DJ Ha (Dec21,202016:59 CST)
DJ Harrell, Director 4Jaso Burnett
Development Services Department
Date: Date: �r,LMIJCa'
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� OR T1--°°°° ��L°,��14,i
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d��1d ��
ATTEST: �����EXpSoaQ Approved As To Form and Legality:
Ronald P. Gonzales,Acting City FWBC Sec. 3210
Secretary Matthew A.Murray, Asst. City
Oct 21 2021 Attorney
Date: 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.
,Zanie Sc-ad&f Morales
Janie Sca rlett Morales(Dec 21,202016:52 CST)
Janie S.Morales
Development Manager
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
ROW Encroachment Agreement-Commercial Page 7 of 12 '
Revised 4/2020 ;
I
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1
' • 1 ' 1 1 ' 1 ' 1 1
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
1
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 19th day of
October, 2021.
Digitally signed by Wendy �pRYpGe WENDY L BEARDSLEE
Wendy L Beardslee Beardslee Notary Public
Date:2021.10.19 12:21:46-05'00' * * STATE OF TEXAS
Notary Public in and for the State of Texas �9 a Notary I.D. 13323719-3
of My Comm. Exp. July 28,2025
After recording return to:
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
ROW Encroachment Agreement-Commercial Page 8 of 12
Revis ed 4/2020
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 Jason E. Burnett, Executive Vice
President 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 New Orleans Cold Storage
and Warehouse Company Ltd., a corporation, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this
day of ,20
0531se Sac c*�Uched
Notary Public in and for the
State of
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
ROW Encroachment Agreement-Commercial Page 9 of 12
Revised 4/2020
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of C2;aCK)Qe— )
On �rl12 1/2 a2CG before me, OV bn Lee
(insert name and title of the officer)
personally appeared MSC N E:-2> 3X2n1fi1-t- ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
• VMAN LEE
an an official sea . x ' commission
ary Public
WITNESS m �
y hand and l
�; .� •z Notary Public•Caldomia
ORANGE County
My Comm:Expires OCT 1,2022
Signature 1/ (Seal)
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
EXHIBIT A
Map of Easement and Encroachment
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ROW Encroachment Agreement-Commercial Page 10 of 12
Revised 4/2020
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EXHIBIT B
Certificate of Insurance
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ROW Encroachment Agreement-Commercial Page 11 of 12
Revised 4/2020
EXHIBIT C
Metes and Bounds or Location Description of Property
Lot 1R3,Block 4,Carter Industrial Park Addition
Lot 3,Block 8, Carter Industrial Park Addition
I
ROW Fncmachment Agreement-Commercial Page 12 of 12
Revised 4/2020