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HomeMy WebLinkAboutContract 57629 (2) Date Received: 06/02/2022 Record Number: PN22-00055 Time Received: 8:30 am City Secretary No.: 57629 PUBLIC PROPERTY RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT TIER 11 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 314 South Main, LLC, a(n) Texas limited liability company ("Licensee"), acting by and through its duly authorized President/Secretary. RECITALS WHEREAS, Licensee is the owner of the real property located at 314 South Main Street, Fort Worth, Texas 76104 ("Property"), being more particularly described in the attached Exhibit "A" which is incorporated herein for all purposes; and WHEREAS, the City owns a right-of-way (street) (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 in Volume 333, Page 13; 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 Grease Trap and Canopy (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 OFFICIAL RECORD Tier II ROW Encroachment Agreement Page 1 of 13 PN22-00055 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 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 Tier II ROW Encroachment Agreement Page 2 of 13 PN22-00055 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. 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 ($700.00). Additionally, Licensee agrees to pay a fee in the amount of $2.00 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. Tier II ROW Encroachment Agreement Page 3 of 13 PN22-00055 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 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. Tier II ROW Encroachment Agreement Page 4 of 13 PN22-00055 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. 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. Tier II ROW Encroachment Agreement Page 5 of 13 PN22-00055 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 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 PN22-00055 City: Licensee: CITY OF FORT WORTH 314 South Main, LLC, a Texas limited I' ility co pany 4 4 B y_OJ H�y 31,2022 09:15 COT) B y: JJ D.J. Harrell, Director of the ame: Rian Ma wire Development Services Department Title: PresidenUSecretary Date: May 31,2022 Date: a�— ATTEST: Approved As To Form and Legality J ette S.Goodall(Ju n 1,2022 21: ST) Jannette Goodall, Thomas Royce Hansen City Secretary Assistant City Attorney Date: Jun 1,2022 po�va���� Date: May 27,2022 45 FORr a� O0,) ° °°°°!y d O� ado °o9�d 0..0 odd C�o o=� Contract Compliance Manager: %*o o* By signing I acknowledge that I am the person a °°°°°°°°°°° d) responsible for the monitoring and administration anti nEXAs�� of this contract, including ensuring all performance and reporting requirements. Janie S. Morales Development Services Date: May 27,2022 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Tier 11 ROW Encroachment Agreement Pace 7 of 13 PN22-000» PAGE FOR CITY OF FORTWORTH 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 31st day of May 20 22 . Wendy L. Digitally signed by Wendy RYP(i WENDY L BEARDSLEE L.Beardslee zo�P e�.� Notary Public Beardslee Date:2022.05.3109:33:24 STATE OF TEXAS -05'00' Qy Notary I.D. 13323719-3 Notary Public in and for the State of Texas 9�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 Tier II ROW Encroachment Agreement Page 8 of 13 PN22-00055 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 Rian Maguire. President/Secretary (Title) known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she cxccutcd the same for the purposes and consideration therein expressed, as the act and deed of 314 South Main, LLC, a Texas limited liability company (entity type), and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this a day of V11 1, 20, J KYIAT LL U ( My Notary ID#131752799 /�/ '•s% +<? �Ires October 9,2022 Notary Public in and for the State of OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Tier 11 ROW Encroachment Agreement Page 9 of 13 PN22-00055 EXHIBIT A Legal Description of the Licensee's Property BEING all of Lot 4, Block 2, Daggett's Second Addition, an addition to the City of Fort Worth, Tarrant County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at an "X" cut set in concrete at the southeast corner of said Lot 4, said"X" cut also being in the west right-of-way line of South Main Street (Variable Width Right- of-Way) and in the north right-of-way line of West Broadway Avenue (100' Right-of- Way); THENCE South 89 degrees 25 minutes 07 seconds West, 150.00 feet along the south line of Lot 4 and said north right-of-way line of West Broadway Avenue to a 1/2 inch iron rod found at the southwest corner of said Lot 4, said iron rod also being in the east line of a 26 feet wide alley; THENCE North 00 degrees 34 minutes 53 seconds West, 81.50 feet along the west line of said Lot 4 and said east line of a 26 feet wide alley to a 1 inch iron rod found at the northwest corner of said Lot 4, said iron rod also being the southwest corner of Lot 3 of said Block 2; THENCE North 89 degrees 25 minutes 07 seconds East, 150.00 feet along the north line of said Lot 4 and the south line of said Lot 3 to a 5/8 inch iron rod with cap stamped "REALSEARCH" set at the northeast corner of said Lot 4, said iron rod also being the southeast corner of said Lot 3 and being in said west right-of-way line of South Main Street; THENCE South 00 degrees 34 minutes 53 seconds East, 81.50 feet along the east line of said Lot 4 and said west right-of-way line of South Main Street to the POINT OF BEGINNING and containing 12,225 square feet or 0.281 acres of land, more or less. Tier II ROW Encroachment Agreement Page 10 of 13 PN22-00055 314 S . MAIN PROJECT 314 S . MAIN ST . FORT WORTH , TEXAS TARRANT COUNTY LOT 4, BLOCK 2 DAGGETT 2ND ADDITION VICINITY MAP = - lrt er.--.—_ i f lndustrlal Supply - Top[scarp - Callber GolllsEt+rr q o a y CO) (►� W Vickery Blvd �n 'fir 0 TultpsFTW E Vickery Blvd E V tofe � o Fprl Construction m Retort!Town Tarantula T i k i Lounge g fiec Ord store PLoft22 Cakes Fade To Black 4Drs Tattoo Company To ttao ohoR e The Bearden Lady The Bowery at ti T The Holly ■■■ 314 S Main St,Fart - Worth,TX 76104 Hap Fuson Me Works a " m W Broadway Ave w Broadway Ave ©Wishbone and Flynt Re9erve on OpEn7ahle Bmadway Saptist Chu,Go. �g, MARCH 2022 EXHIBIT B Depiction of the Public Property Tier II ROW Encroachment Agreement Page 11 of 13 PN22-00055 D F— - N x H T Ll mN�� � U W A J y Aaliv 19Z b OHE A � O .7n— IQk a 11 1� _mm�m HE ,OHE� o �S w a NAm ro L w LJL omro a � o =w cimm, m r ti Nan O 45 o a ro � =. oLO �O m kin N ti< 10 < (gyp o NO ti 0 µ _ ° NCD 0 o a o � r�o ^ 00 A � � wA `' C a T coo n- � � � � �- � ['1 r° C!1 m to N IDr �. n D 'N Q o NN ry Vf co [D o w a uj CL a m X :uL min I 3 a m ° O z w \ D Q V Ix\ Lo NrEn OS' -9�.... O .� 11 Nd 00 R7 •anm-; � °�°� D ° D lul cAN J o p C4P v AA A a ° •A CD y.� INU.V a ° fl ro o a ° A N AeM-30-446R1 44P!M a!ge]JPA41 ap 2 EXHIBIT C Depiction and description of the Encroachment Tier II ROW Encroachment Agreement Page 12 of 13 PN22-00055 RUN! o Lh� f7'$ Q � 39�dn4 96 O 4R g 89 '9 A Alongg Alon - O a:trap "d one IZ d id j u F a /p ���� S ��� m��$�p u f�• �� O 4m a ' � IF f�• _aP-rIl� _ � re8� 0 0 a D 1. qui 8- 8m I 5.Main Street 3s�a� sd"imblewdenuync-or-way All. mu d nQ�afm8f`dzn-m��ffln`42 ��^'I" � m sad m� z i'X g" -" mQ' gpNo�zszm _ H D="am=Q=Qa�g' oapon� §� :dam§rmotB g9Q<g;�o�8" r 8g"4Hn'v ogp''AnK4�ri _ Rs �y , ' 'z� RovBn vmi 9m 4S 6,Em�9 q '® m 4$ mmg v g gag'"�'9" A� $- °,z � � "� 5$ 4 Z "azlFfs�^m90 � m= PROPOSED RETAIL 614 S. MAIN ST.;FORT WORTH,TX 5 WATER & WASTEWATER PLAN N1Ix51 Pat��t�,}�x 7V,,,ee „s,T, g G G %I744 1111 91748H.937 Firm 1:.1722111 1" IRF 0.281 Acres 12,225 Square Feet N Lot 4, Block 2 Daggett's Second Addition Di Volume 333, Page 13 _ P.R.T.C.T. John G. Johnson CCF# D218249126 D.R.T.C.T. i LINE BEARING DISTANCE Ll S 00138'03"E 3.52' L2 S 00031'04"E 6.51' L3 S 89026'17"W 10.00, L4 N 00031'07"W 6.50' L5 S 89121'57"W 2.20' L6 N 00138'03"W 3.56' POW OF L7 N 89125'07"E 2.11' 1/2" IRF 11: 7 N 89°25'07"E 47.00' 1/2 IRF — — — — — — r rn LS ti S 89o21'57"W 34.80' L3 L4 Variable Width Encroachment Area 0.005 Acres 231 Square Feet W. Broadway Avenue 100' Right-of-Way LEGEND D.R.T.C.T.=Deed Records,Tarrant County,Texas P.R.T.C.T.=Plat Records,Tarrant County,Texas CCF#=County Clerk's File Number IRF=Iran Rod Found IRS=5/8"Capped Iron Rod Set Stamped"Realsearch" OHE=Overhead Electric RIGHT—OF—WAY ENCROACHMENT EXHIBIT Situated adjacent to Block 2, Dagget's Second Addition, anDadditionto the City of Fort Worth, according to the plat thereof reVolume 333, Page 13, Plat Records of Tarrant County, NOTES 1,The basis of bearing is the Texas Coordinate System,North American Datum of 1983,North Central Zone,4202. 2.This exhibit was prepared from an on-the-ground survey of the subject property. 3.See attached Sheet 2 of 2 for Legal Description. Project Number: 200503 Date: March 18 2022 .0..F' Revised Date: cl):. ° s Revision Notes: JEREMY-pUK-� Sheet 1 of 2 5696 �:'z-- 9ti 5s.,.- , REALSEARCH OF TEXAS, LLC sL1 1� PAS EAR P.O.Box 1006,Godley,Texas 76044 SCALE : 1 = 20 o Ph.682-200-6050,jdeal@realsearch.org,www.realsearch.org "Thou shalt not remove thy neighbor's landmark"Deut.19:14 11"5 TBPLS Firm Registration#10158200 TBPE Firm Registration#17968 0' 20' 40' p copyright2022,Realsearch of Texas,LLC LEGAL DESCRIPTION BEING a 0.005 acre tract of land situated in the Hrs.1.Childress Survey,Abstract Number 250,Tarrant County, Texas and being a portion of the W. Broadway Avenue(100'Right-of-Way)right-of-way and being more particularly described by metes and bounds as follows: COMMENCING at a 1/2 inch iron rod found at the southwest corner of Lot 4,Block 2,Daggett's Second Addition, an addition to the City of Fort Worth,according to the plat thereof recorded in Volume 333, Page 13,Plat Records,Tarrant County,Texas,said iron rod also being in the east line of a 26 feet wide alley and the north right-of-way line of said W.Broadway Avenue; THENCE North 89 degrees 25 minutes 07 seconds East,2.11 feet along the south line of said Lot 4 and said north right-of-way line of W. Broadway Avenue to the POINT OF BEGINNING; THENCE North 89 degrees 25 minutes 07 seconds East,47.00 feet,continuing along said south line of Lot 4 and said north right-of-way line of W. Broadway Avenue; THENCE departing said south line of Lot 4 and over and across said right-of-way of W. Broadway Avenue the following calls: South 00 degrees 38 minutes 03 seconds East,3.52 feet; South 89 degrees 21 minutes 57 seconds West,34.80 feet; South 00 degrees 31 minutes 04 seconds East,6.51 feet; South 89 degrees 26 minutes 17 seconds West, 10.00 feet; North 00 degrees 31 minutes 07 seconds West,6.50 feet; South 89 degrees 21 minutes 57 seconds West,2.20 feet; North 00 degrees 38 minutes 03 seconds West,3.56 feet to the POINT OF BEGINNING and containing 231 square feet or 0.005 acres of land,more or less. or Project Number: 200503 Date: March 18, 2022 �P`�c ERFF9 Revised Date: co °`•. Revision Notes: JEREMY K� Sheet 2 of 2 9; 5696 �P�- r S Eq R REALSEARCH OF TEXAS, LLC SjR�� s P.O.Box 1006,Godley,Texas 76044 o Ph.682-200-6050,jdeal@realsearch.org,www.realsearch.org "Thou shalt not remove thy neighbor's landmark"Deut.19:14 TBPLS Firm Registration#10158200 TBPE Firm Registration#17968 ..w,000) 0 copyright2022,Realsearch of Texas,LLC EXHIBIT D Certificate of Insurance Tier II ROW Encroachment Agreement Page 13 of 13 PN22-00055