HomeMy WebLinkAboutContract 44589 (3)CITY SECRETARY
L��ia
CONTRACT NO.
RIGHT OF WAY
ENCROACHMENT AGREEMENT
(COMMERCIAL)
THIS AGREEMENT is made and entered into by and between the City of Fort
Worth, 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", and
Magnolia May, LLC , acting herein by and through its duly authorized Limited Liability
Company Managing Member hereinafter referred to as "Licensee", Owner of the property
located at 411 West Magnolia, Fort Worth, Texas 76104 ("Property").
AGREEMENT
1.
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,
Improvement(s) ("Improvement") that encroaches upon, uses and/or occupies portions of
the space under, on and/or above the streets, alleys, sidewalks and other public rights -of -
way, such Improvement(s) are described as follows:
Right of Way Encroachment — Building Awnings
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.
c
2.
All construction, maintenance and operation in connection with such
0
w Agreement and the Charter, Ordinances and Codes of the City the
w directions of the Director of Transportation and Public WoifeindalayriEe} .,:;r; duly
Improvement, use and occupancy shall be performed in strict compliance with this
CITY SECRETARY
Ft WORTH, TX
2012 ROW Encroachment Agreement -Commercial Page 1 of 10
authorized representative. All plans and specifications thereof shall be subject to the
prior written approval of the Director of Transportation and Public Works, or his duly
authorized representative, but such approval shall not relieve Licensee of responsibility
and liability for concept, design and computation in preparation of such plans and
specifications.
3.
Upon 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 determined 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.
2012 ROW Encroachment Agreement -Commercial Page 2 of 10
6.
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 (30) 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.
8.
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
Improvement, 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 -of -way, alleys, sidewalks ("public right-of-way") to be used and encroached upon
2012 ROW Encroachment Agreement -Commercial Page 3 of 10
as described herein, are 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 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 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, transmission 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.
11.
Licensee agrees to comply fully with all applicable federal, state and local laws,
statutes, ordinances, 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.
13.
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,
2012 ROW Encroachment Agreement -Commercial Page 4 of 10
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.
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 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 ANY AND ALL ACTS OR OMISSIONS OF
LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR
TRESPASSERS.
2012 ROW Encroachment Agreement -Commercial Page 5 of 10
15.
While this Agreement is in effect, Licensee agrees to furnish City with a
Certificate of Insurance, naming City as certificate 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".
The amounts of such insurance shall be not less than the following:
$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, binds 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 coveragerequired 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.
2012 ROW Encroachment Agreement -Commercial Page 6 of 10
17.
In any action brought by the City for the enforcement of the 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 assignment without prior written approval will be
void.
19.
THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION
CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
20.
This Agreement shall be binding upon the parties hereto, their successors and
assigns.
EXECUTED this �l ray of
, 2013.
2012 ROW Encroachment Agreement -Commercial Page 7 of 10
City
City of Fort Worth
RANDLE HARWOO+
DIRECTOR
PLANNING & DEVELOPMENT
ATTEST:
City Secret
,a PQCI%4;\ Assistant City AttorneyVOC
I-p��00opOv F
Licensee
TYPE :Magnolia May, LLC
By:
Name: Dak Hatfiel
Title: Managing Member
Approved As To Form and Legality
2012 ROW Encroachment Agreement -Comme icial— NO M&C REQUIRED
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Pae8 • I
STATE OF TEXAS §
COUNTY OF TARRANT §
Okdoif
J
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Rittlfttlallid, known to me to be the person whose
name is subscribed to the foregoing instrument, 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 of Fort Worth, and in the capacity therein stated.
IVEN UNDER MY HAND AND SEAL OF OFFICE this day of
""Y'..4 CASSANDRA F. FOREMAN
11fl,• •; .�(��i
��;� Notary Public, State of Texas
1.+. My Commission Expires
'may �e.j o•'� April 26, 2017
qunN,
Notary Public in and for the
State of Texas
2012 ROW Encroachment Agreement -Commercial Page 9 of 10
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 Dak Hatfield, Managing Member known to me
to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same for the purposes and consideration
therein expressed, as the act and deed of type name of entity, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
t$ , 2013.
KEN EVANS
Notary Public
STATE OF TEXAS
My Comm. Exp. Aug. 25, 2016
Notary Public in and for the
State of Texas
2012 ROW Encroachment Agreement -Commercial Page 10 of 10
Exhibit A —location and
Description of Improvement
/
411
W. MAGNOLIA AVE.
ENCROACHMENT
LOCATIONS
409 407
MAGNOLIf AVE. MAGNOLIA AVE.
i
■
MAGNOLIA AVE.
401
MAGNOLIA AVE.
BENMIETT■ BENNER ■ PETTIT MAGNOLIA AND MAY
ARCHITECTS+PLANNERS ENCROACHMENT AGREEMENT EXHIBIT #1 of 4
23 May 2013
1" = 20'-0"
0 1"
9 -
1'-10"
1'-3"
■
34'-2"
AWNING
ENCROACj-IMENT /
/
/
411 /
MAGNOLIA AVE. /
W. MAGNOLIA AVE.
NEW AWNING
88.26 SQ. FT. OF
ENCROACHMENT
1'-0"
, 6'-8'
I!
CO
NEW AWNING
4.72 SQ.FT. OF
ENCROACHMENT
CV
\ 409
MAGNOLIA AVE.
BENNETT■ BEMIER ■ PETTIT MAGNOLIA AND MAY
ARCHITECTS + PLANNERS ENCROACHMENT AGREEMENT EXHIBIT #2 of 4
23 May 2013
1" = 20'-0'
0 i^
W. MAGNOLIA AVE.
NEW AWNING BELOW
4.72 SQ.FT. OF
EXISTING MARQUEE ENCROACHMENT
1.81 SQ. FT. OF
ENCROACHMENT
(APPROXIMATE) � 6' 8"co
,716.7
407
MAGNOLIA AVE.
401
MAGNOLIA AVE.
•
BENNETT■BOWER ■PETTIT MAGNOLIA AND MAY
ARCHITECTS + PLANNERS ENCROACHMENT AGREEMENT EXHIBIT #3 of 4
23 May 2013
1" = 20'-0"
0 i°
IG
-'1\ 653.92'
2
_ o
`' z
651.49'
EXISTING WINDOWS
REPAINT / REFURBISH ALL EXISTIN,
DOORS, WINDOWS, CORNICE AND
VENEER TO REMAIN
NEW DOORS/
WINDOWS
EXISTING -
MARQUEE
NEW BRICK SILL.
MATCH EXISTING
ALL NEW GLAZING SHALL
HAVE A CLEAR TINT ;
SHALL HAVE A MAXIMUM
SHGC OF 0.30 AND A
401 407
MAGNOLIA AVE. MAGNOLIA AVE.
NEW FENCE
REF. SECTION
1/A-320 SIM.
PATCH & PAINT
NEW AWNINGS—
W/ CABLE
SUPPORTS
O (V
PROVIDE NEW 8' DOOR
NEW MTL. PARAPET CAP
NEW WALL
REF. SECTION 1/A-320
NEW CANTILEVERED AWNING
NEW AWNING W/ CABLE
SUPPORT
NEW WINDOWS/DOORS
IN EXISTING OPENINGS
TYPICAL
STAINED CONCRETE
BASE. MAX. HEIGHT 6"
409 411
MAGNOLIA AVE.
BEMIETT■ BENNER ■ PETTIT MAGNOLIA AND MAY
9
653.32'
PROVIDE NEW 8' DOOR
W/ 2' TRANSOMS ABV.
MAGNOLIA AVE.
ARCHITECTS+ PLANNERS ENCROACHMENT AGREEMENT EXHIBIT #4 of 4
23 May 2013
1" = 10'-0"
0 1°
�u�
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'M1NEREAS. !d.y..�'. V.ay, LLC, is tne serer
of All that =ertain Lin cores (4%300 s Set) o'taro, "t:h is Lst 1,
A, 5, 6 a d 7, Bloc!. `O u;d, ot's Subo, „sign of Blocks
22 and 23.- e'h Addition, cr. do d,000 i 'he
Cit▪ e; of Fcrt 0::!:, r=_cardec in Volur.e 35, Pace 1E2 it a GeedRecords of Tarrant C sner, texas, In the PI. Welch
Surety. A-164e, C9y of Fort Wert,. ant County. T and w e 77a,icularj d,scs::ed :.y males and bounds a
faira::s / - - s Nosed on art-o'-nay Teens of Noy, Street (ea' P.O.W.; - on the plot of Let 51R,
Block 1, �Moocan3 F:ens S.hliesion, recorded ,r Cabmel E. Side 2331 in. the Fiat ReeoSJs reef Tom,. County. ',teas-
CornmemIna at o ';(' in and for the nortfreest of sand Lot IR. D 0 1, t/00d21 & - .;Nd.:o600,
al the Inter eclion f 110 e r'n:9t'af-war lire of s c Ua •a=
concrete y ., and the _ r.35t-of-�ecy a ftWe t I/aanafo
rsena,e (fdP.O.W.), ', which n a far the,nnrihecel c b Lot IN, Desk F 'a &
Evansthen intersectionofc:,ih r- - - - of acid West of
A
ghtel-n .sl"ore of S. Lcu1e .eeense (52' 9...0) bees sFes:"- and from elnkt. a `ruin ewl:,nd o
the ' the a right-of-eay line of sae Nay i aro vine Booth right-of-way line of oWest Mo•phy Street
(26' RA Soc h�426.00', Thence Nest - 5'3.CO' to an h,`Y o•Drnest c and POINT
OE BEGIu'lit1/ Ue e described tot:. et the in e.ti.'v, of the .est riehi-of-etoy Ine o. _av ldayS!-e, and
✓,. ,ou(h nab-:1-r:ay ine a .01e tree: 6agnara Aven,e,
1-6ENCE South - 350.0V an o to west
ont-of-coy q of said Vey Street, t o./2" rod ell, a coos stomped
et for the sout,e:<tearner of Odesertedn deserted tract common to ilia norlhecs: 0o
of lot 6 . ,u,d
Blond,Blo,1cl 0. Vaaci0's Suhls4o .:. I::n ..701, 0 3/8" Iron
rod v cap stomped "ur C cbs, (zero tar the northeast
corner of sad Lc, 9R, (Coc>. 1, S.O. Ncad',.'s S:td016an.re_orceo in Cabinet 0, SSOO 7826, In the Pict 5-000 :s of
7c,ru,: _.,unty. T•= „s. tears South -
THENCE vies: - 106.03' to o _ 'urn vith a st^0,040/ "SPRY" set for the sestheesi corn al the herein
desabea n (0 the ne,t*vastoc r of s d Lot 6, Back 1, S. O. Mac^ 0uNbi the east One of
nea• ,' ASev. �f o which o want a caps mpeo . found for the 5,theesl a f the •12' R.C.W.
:aaon, as new an the plat a saes Lot BB. 01*,: 1. S. '2..laod,e's sandeenor 0eera loath -':COO, ar0 fmrr
r-" '• rod with o can s(am,oe* -taunts". tou-d for the northwest tam_ o sok: Lot SR. Bc_k 1. 5. O.
,d:oco,e s Sacaleisron Sears South -- 55.00':
HENCE North - 9,50 CO' won') thecast h^n s o 2(i Atey, t a, "K" ,0.00:0te set foe the n.rh,est ,er al
the herein des -reed reet. e, tee saUCold-of-coy CaOaf-coy line a. ssn West 6ogno90 Ave de,
THENCE East - 135.00' along the seutI right-of-ea'y nine of said West LUgna,o Sires:. t: :he PONT C' BEG5N,NO and
cantain;na 1.103 acres of ,end.
NOW TFEREFORE, KNOW ALL PERSONS B" THESE PRESENTS•
That Morelia Mry. LLC, tee Owner, dcas ^elite:, asp: the nera n descri^.ed veotrt/ as Lot IR an:o d 0,: S.O.
So_o= 2_ iS 01eR-:', elcr A;e.+.i: c ad3,tion to ine City o . : Worth. Torrert County.
Teens, and does hereby dedicate to Lhe Pubi''o's dee forever the
ryhte-o'-coy Slid easernenes shown :hereon.
CONG. GONG
LOT 1R, BLOCK 1
MOODIE & EVANS SUBDIVISION
CAB. B, SLIDE 2331 P.R.T.C.T.
LOT 14
BLOCK 1, MOODI E &
EVANS SUBDIVISION
V 0 1,. 6 3, P G. 1 D. R. T. C. T.
LOT 14
ENCROACHMENT
LOCATION
INCROACHMENT
LOCATION
O • O
0
ENCROACHMENT
LOCATIONS
ASPHALT
ANLTIP_E STORY
ERICK BUILDING
ONE STORY
BRICK BUILDING
f
3 IRON FENCE
v
oo
+sue
LOT IR
34,948 S.F.
0.802 AC.
CONC. WALL
a/l%/(/(( �/ /, / 0
3
LOT 32 LOT 31
MAY S TREE T
(60' R.O.W,)
SOUTH — 350.00'
NORTH — 350.00'
S U 8 O I V 1
K 1 S.O. fA O O D FE E L D'19 E L C T.
SLOG 9 ANO 23, 2 O. R. T. C.
F O L p 1�(IFT 32 2 3 5 1 P G. 1 6 LOT 29
I VOL.
p Nt CHAIN LINK FENCE
opt T l 0 N
LOT 28
LOT 2R
13,352 S.F.
0.307 AC.
20' ALLEY
LOT 27
CHAIN LINK FENCE
LOT 26
a
LOT 14
e-
V1
0*o
LO
CC IN
J
lal . ~
V K
OZ
� Z
U
O
3�
0
LOT 25
NO.
A
GRAPHIC SCALE
40
is II
MINMENO
( IN FEET )
1 inch = 20 It
CALL 72 HOURS
BEFORE YOU DIG
1-800-344-8377 (DIG-TESS)
I-800-245-4545 (TEXAS ONE),
1-800-669-8344 (LONESTAR NOTIFICATION)
OR OTHER UTILITY LOCATING SERVICES
NOTICE TO CONTRACTOR:
THE CONTRACTOR IS SPECIFICALLY CAUTIONED THAT THE LOCATION
AND/OR ELEVATION OF EXISTING UTNT1ES AS SHOWN ON THESE PLANS
IS BASED ON RECORDS OF THE VARIOUS UTKITY COMPANIES AND,
WHERE POSSIBLE, MEASUREMENTS TAKEN IN THE FIELD. THE
INFORMATION IS NOT TO BE RELIED ON AS BEING EXACT OR COMPLETE.
IT SHALL 8E THE RESPONSIBIUTY OF THE CONTRACTOR TO RELOCATE
ALL EXISTING UTILITIES WHICH CONFLICT WITH THE PROPOSED
IMPROVEMENTS SHOWN ON THE PLANS.
BENCH MARK NOTES
PRIMARY BENCHMARK = ALL ELEVATIONS AND CONTOURS SHOWN
HEREON ARE BASED ON THE CITY OF FORT WORTH MONUMENT NUMBER
8775, LOCATED ON THE SOUTHEAST CORNER OF HEMPHILL STREET &
MAGONUA AVENUE IN THE EAST CURB UNE OF HEMPHILL, 61.8' SOUTH
OF THE SOUTH OF THE SOUTH CURB UNE OF MAGNOLIA AVENUE, IN
THE CENTER OF A 10' INLET.
ELEVATION 658.28'
REVISIONS
DESCRIPTION
DATE
5-2-13
2
3
FOR`- T,H CITY OF FORT WORTH, TEXAS
Magnolia And May
Encroachment Exhibit
evolving.
Civil Engineering
Planning
420 51!t00omorlon, suite 930
Fad Worth, TX 76102
817-529-2700
TBPE No. F-12452
www.evolvingtexas.com
DRAWN:DESIGNED: OB 1 SCALE: 20' FEBRUARY 2013 I 1 SOFT 1
MAGNOLIA AND MAY (S.O. MOODIES SUBDIVISION, LOT 1 R & 2R, BLOCK 1)
Exhibit B — Certificate of
Insurance