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HomeMy WebLinkAboutContract 44479 ctry L CONMCT RIGHT F WAY ENCROACHMENT G EME T COMER CIA L THIS AGREEMENT is made and entered into by and between the City of part Wort, a municipal corporation of Tarrant County, Texas, acting herein by and through its duly authorized City Manager or its duly authorized Assistant City Manager or Planning and Development Department Director, hereinafter referred to as the "City's, and National Retail Pro perties, LP , acting herein by and through its duly authorized General Partner hereinafter referred to as "Licensee", Owner o�f the property located at 812 Main Street, Fort Worth, Texas 76102 ("Property"). AGREEMENT . For and in consideration of the payment by Licensee of the fee set out below and. the true! and faithful performance of the mutual covenants, herein contained, City hereby grants to Licensee permission to construct/ install and/or allow to remain, Improvements) ("Improvement") that encroaches upon, uses and/or occupies portions of the space under, on and/or above the streets, alleys, sidewalks,.s.and other public rights-of- way, such Improvement(s) are described as follows Patio addition The location and description of said Improvement and the encroachment is more particularly described in Exhibit "'A", attached hereto, incorporated herein and made a part hereof for all purposes. 2. All construction,, maintenance and operation in. con- ection with such Improvement, .s and occupancy shall be performed in strict compliance with this Agreement and the Charter, Ordinances and Codes of the City and in accordance with the directions of the Director of Transportation and Public orbs of City, or his duly authorized representative.uve. ill plans and 01:1FICIAL REcORD CITy SF.CitSTARY Fsrt woltym,TX 2 2 ROW En roar n � o ��' ! Page o 0 13 s c if "ons thereof' shall be subject to the prior written approval of the Director of pe icati 'Transportation and Public Works, or his duly, authorized representative, but such approval shall not repave Licensee of responsibility and liability for concept, design and computation in preparation of such plans and specifications. 30 on completion of construction and installation of said Improvement and thereafter, there shall be no encroachments in, under, on or above the surface area of the streets, alleys, sidewalks and other public rights-of-way involved, except as described herein and shown on the hereinabove referred to Exhibit"A". 4. 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 of approval, and consent from the utility companies, and the appropriate agencies of the State and its political subdivisions. In the event that any installation, reinstallation, relocation or repair, of any existing or future utility or improvements owned by, 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 such encroachment and use,, Licensee shall pay to City an additional amount equal to such additional cost as deten-nined by the Director of Transportation and Public, Works of the City, or his duly authorized representative. 5. City may enter and utilize the referenced areas at any time for the purpose of installing or maintaining 'improvements necessary for the health, safety and welfare of the public or for any other public purpose. In this regard, Licensee understands and agrees that City shall bear no responsibility or liability for damage or disruption of improvements installed by Licensee or its successors, but City will make reasonable efforts to minimize such damage. 6. 2012 ROW Encroachment Agreement-Commercial Page 2 of 10 In, order to defray all costs of inspection and supervision which 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 Two Hundred and Seventy Five Dollars ($275.,00). Upon execution of this Agreement and annually thereafter, Licensee agrees to pay a fee in the amount of$.56 per square/linear foot of the encroachment area. 7. The term of this Agreement shall be for thirty (3 0) years, commencing on the date this Agreement is executed by the City of Fort Worth. Provided however, this Agreement shall terminate upon the non-compliance of any of the terms of this Agreement by the Licensee. City shall notify Licensee of the non-compliance and if not cured within thirty days, this Agreement shall be deemed terminated. Licensee may terminate this Agreement in the event that the Improvements are no longer maintained within the encroachment area., 80, Upon termination of this Agreement, Licensee shall, at the option of City and at no expense to City, restore the public right-of-way and remove the Improvement encroaching into the public right-of-way, to a condition acceptable to the Director of Transportation and Public Works, or his duly authorized representative, and 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 Iniprovement, Owner hereby gives City permission to remove the Improvement and any supporting structures and assess a lien on the Property for the costs expended by the City to remove such Improvement. 9. It is further understood and agreed upon between the parties hereto that the public rights- 1 1 of-way, alleys, sidewalks ("pubfic right-of-way") to be used and encroached upon as, described herein, are held by City as trustee fo�r the ub.ic; 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 Legislature, and that City cannot, contract away its duty and its legislative power to control the 2012 ROW Encroachment Agreement-Commercial Page 3 of 10 public right 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 right of way to be used for any other public purpose, including but not being limited to underground,, surface of overhead communication, drainage, sanitary sewerage, transmissio�n of natural or electricity, or any other public purpose, whether presently contemplated or not, that this Agreement shall automatically terminate. 10, Licensee agrees and acknowledges that this Agreement is, solely for the purpose of permitting Licensee to construct, maintain and locate the Improvements over or within the described 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 permission before occupying, such property. Licensee agrees to comply fully with all applicable federal, state and local laws,, statutes, ordinance.,S, codes or regulations in connection with the construction, operation and maintenance of said Improvement, encroachment and uses. 12. 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. 130 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 res nsi N e for the acts and omissions of its officers agents, servants, employees, contractors,, p,o subcontractors,, licensees, and invitees. The doctrine of respondeat superior shall not apply as 2012 ROW Encroachment Agreement-Commercial Page 4 of 10 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., 14, LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, 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 SAID IMPROVEMENT AND ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES OF THE CITV, AND LICENSEE HEREBY ASSUMES ALL LIABILrrV AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS.1 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 ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS, 15. While this Agreement is in effect,l is agrees to furnish City with a Certificate of �*r� Insurance, naming City as, certilicate holder, as proof that it 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". rl"he amounts of such insurance shall be not less than the following.- 20 12 ROW Encroachment Agreement-Commercial Page 5 of 10 $1,000,000 Commercial General Liability with the understanding of and agreement by Licensee that such insurance amounts shall 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 provide that it cannot be canceled or amended without at least ten (10) days prior written, notice to the Building Official of the City of Fort Worth. A copy of such Certificate, of Insurance is attached as attached as Exhibit "B". Licensee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement. Licensee agrees, b�inds and obligates itself, 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 all encroachments and the cleaning and restoration of the city streets. All insurance coverage required herein shall include coverage of all Licensees' contractors. 16. 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 Consent Agreement in its entirety in the deed records of Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth, Texas. 17# In any action brought by the City for the enforcement ofthe obligations of' Licensee, City shall be entitled to recover interest and reasonable attorney's fees. 18', Licensee covenants and agrees that 'it will not assign all or any of its rights, privileges or duties under this contract without the prior written approval of the City Manager or designee. Any attempted ass,ignment without prior written approval will be void. 2 012 ROW Encroachment Agreement-Conunercia) Page 6 of 10 19, THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT, 209, This Agreement shall be binding upon the parties hereto, their successors and assigns. 21. The City agrees that any and all of Licensee's obligations hereunder may be performed by its Tenant, Del Frisco — Fort Worth, L.P., or a subsequent tenant or occupant of the Property, pursuant to the City's standard assignment process. EXECUTED this '7N day of M,(A LJ 120 2 0:12 ROW Encroachment Agreement-Conirnercial Page 7 of 10 City L,icens,e�e �w City of Fort Worth NATIONAL RETAIL PROPERTIES, LP, a Delaware limited partnership By-, NN N GP Corp., a Delaware corporation, as General Partner X By: .10 100 By: Piaul E. Name: RANDLE HARWOOD Title: e President DIRECTOR v PLANN,NG 8�r DEVELOPMENT ATTEST: Approved As To Form and Legality ell- ity Sr Ass istant City Attorney Arm a00 00 0 000 OFFICIAL RECORD CITY SECRETARY Re WORTH9 T)( 2012ROW Encroachment Agreement-Commercial Pag f 10 STATE OF TEXAS COUNTY OFTARRANT � .. BEFORE ME the u d signed authori a Notary :PUblic in and for the State of Texas,, on this day personally appeared known to me t o he the erson whose name is subscribed to the foregoing nstrume t, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of the City f' Fort Worth and in the capacity therein stated. GIVEN tYNDER MY HAND AND, SEAS OF OFFICE this day of . 2 ti n IRMA SAENZ TEXAS Notary Public STATE OF Notary Public in and for the my comim.Ex M Jars,28,,2016 State of Texas 2012 ROW Encroachment Agreement-Commercial Page 9 of STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this day of At j 2013 by PaW 19.Bayer ExecWve%rice Ptes*dent I , as of NNN GP Corp.,, a Delaware corporation, as general partner, of National Retail Properties, LP, a Delaware limited partnership, on behalf of the partnership. Hel e i����1 Jmown to me or has produced as identi fi cation. Pr I i I n.Atd Name Kella S6aible Commission My commission expires: ism Ak KELLA SCHAIBLE cornrnission#EE 85,1262 Upires March 11,2017 we 80(�3*70,19 Br so 7h' i TrOY Fain ift= 2012, ROW Encroachment Agreement-Commercial Page 1 0 of 10 ZAM xL'3MVlHLfM u 001 ZAM-AW T ll K& � +rrwaww� wisrtlr��, ��a 3"PJN33I A —. � _ ' . JJ—13G fig r CL us VIP r. �c I� ! 2 ! N © „ ! ! r ! ! will rl c7 IWO N PW LL. ! I I I! I rl 'lilt ! Ld O ! _I 1 CC 7 O, r f ! ! Lu s � r !' ! N ? !' ! IN ! ! ! _ r. l N ! ----------- Ilk Vill w J' !i N i ! I r ! f I I r f zm�SIM rw r in .a, ODI 31st-40 Troofts I Kfi SIR MY C) "m IKUX)m u 3,srm WV3.,S 3m"3mnoo 90 S.02M:11,1311(l at IRIS ib I allo, I AT HIM rvqo --4 L. 1 IT rww zvw Oita VAL AML --s do --f row Ir SL Tq\ .............. URN T7 k1— L ........... 9 AC R"� DATE tMM/a��)CERTIFICATE OF IABI ITY INSUR E �wa� 04/12/2013 THIS CERT'IFICAT'E IS ISSUED AS A MATTER 01F INFORMATION ONLY AND CONFERS NO RIGHTS-UPON THE CERTIFICATE HOL1DER,.THl8­" CERTIFICATE DiOlES' NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER TH-E COVERAGE AFFORDED BY THE POLICIE:S BELOW., THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED. REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. m IMPORTANT: If the Certificate holder is an ADDITIONAL INSURED,the policy(ies) must be endorsed. -if S,UIBROGATION IS WAIVED,subjeCt �' the terms and Conditions of the P011iicy, certain policies may require an endorsement. A statement Ora,this certificate does not conifer rights to the certificate holder In lieu Of such endorsement(s). PRODUCER CONTACT Marsh USA,Inc. NAIiME: 4400 Comedca Bank Tower RHONE FAX No]: 1717 Main Street E-MAIL Dallas,TIC 70201-7357 ADDRESS: Attn:Susan Fagan,Susan,D.Fagan @marsh.com INSURERS AFFORDING COVERAGE NAIL# 7004WDeIFr GAW1WXX-13-114 GA's' INSURER A: Zurich Arr�u�rilcan Insurance Company 40!142 INSURED North American Capacity Ins Co 125033 r 1 Dal Frisc®s Restaurant Group,Inc. INSURER B: Attn: Risk Managernent rapt INSURER C:American Zurich Insurance Company 10535 2711 N Haskell,Suite 1800, INSURER D: Dallas,TX 75204 INSURER E:, n INSURER F: COVERAGES CERTIFICATE NUMBER: HOU-002215340-01 REVISION NUMBER:7 r THIS IS T01 CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWTHSTANDINC ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHIER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, v,. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LINTS SHOWN MAY HAVE BEEN REDUCED BY PAID'CtAIMS.,"� :.v INSR ADD,L S,UBR, POLICY EFF PO CY EXP L�TR 'TYPE OF INSURANCE POLICY NUMBER MMfC��D Y"YY'� MMI D YY` Y,n��., LIMITS �d �. °��,�A' A GENERAL LIABILITY' GL+Cg142027- 03/12/2013 0311� 14 `'j"00a;@00; EACH OCCURRENCE $ X COMMERCIAL GENERAL LIABILITY DAMAGE REMI'SES(Ea o ul ence $ �.250,0�0 CLAlhMS-IIMAaE M OCCUR MEfl E P(Any one person) LIQUOR LIA.B.$1 /$2 PERSONAL INJURY ';0 0„000 X SIR-$50„000 GENERAL AGGREGATE $ 2,000,000°z. n GENI'L AGGREGATE LIMIT APPLIES PER: PRODUCTS COMP/OP AGG $ 2,01001,'000 POLICY PRO- Fx] LOC Aggregate Per'Policy $ 30;000'000 JECT A, AUTOMOBILE LIABILITY BAP5344701-05 03/12/20113 03/12/2014 COMBINED SINGLE LIMIT 1,0100,000 Ea accident X ANY AUTO BODILY INJURY(Per Person) $ ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY(Per accident) $ NON-OWNED PROPE TY DAMAGE $ HIRED AUTOS AUTOS (Pier $ UMBRELLA LIAR OCCUR EACH OCCURRENCE EXCESS LIAR HCLAIMS-MAD,E AGGF ELATE $ DEDT—]RETENTION$ $ A Wk1ORKERS COMPENSATION WC9142025 05(AOIS)' 03/12/2'013' 03/12/2014 X I W STATU'- OTH- C AND EMPLOYERS”LIABILITY YIN WC5095931I00(MIA) 03/1212013 03/1212014 1„000,000- ANY PROPRIETOR/PARTNER/E�XECU I IVE E.L.EACH ACCIDENT $ � L',FFICER/MEN BI ER EXCLUDED N NIA (Mandatory In NH) E.L.DISEASE- EM PLOYS $ If Wescribe uinder 1IIPTION OF OPERATIONS LeIe�w+� E,L_DISEASE -POLICY LIMIT $ 1,000°000 B T NIor�SUhscri5er Occupational EEG0005102-00 013/12/2013 +03/12/20.14 CSL per covered person ����P Accident Insurance Policy CSL per covered occurrent $20,00u0pp DESCRIPTION OF OPERATIONS!LOCATIONS I VEHICLES(Attach ACORN 101,Additional Remarks Schedulle,if more space Is Re:Del Frisco"s Double Eagle!Steak House,812 Fain St.,Fort Worth,TX 7'6102 Del Frisco's Double,Eagle Steak House is included as a Named Insured,Please see attached. EXHIBIT q"o CERTIFICATE HOLDER CANCELLATION City of Forl Worth SHOUILD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 11000 Throckrnorton St, THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Fart Worth,TX 76102 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA Inc. William Hines �.,.,.c 4 1 988-21010 ACORD CORPORATION. All rights-reserve,4�.� ACORD 25(2010/05) The ACORD nami�e and logo are registereci marks of ACORD k°a tPo Ise'' rXF s m k-