HomeMy WebLinkAboutContract 28838 05 : 149929989 1 -FI'l 06-25-03 A09 : 02 IN
CONSENT AGREEMENT
CITY SECRETARY,)R3��
STATE OF TEXAS § CONTRACT Mo. _010_ja
COUNTY OF TARRANT §
THIS CONSENT AGREEMENT ("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
duly designated Assistant City Manager (hereinafter referred to as the "City"),
and PNL FORT WORTH, L.P., a Delaware limited partnership, acting herein by
and through its duly authorized general partner, PNL FW GP, LLC, a Delaware
limited liability company (hereinafter referred to as "Grantee").
W I T N E S S E T H:
1.
For and in consideration of the payment by grantee of the application
charge set out below and the true and faithful performance of the mutual
covenants herein contained, City hereby grants to Grantee permission to
encroach upon, use and occupy portions of the space, to the extent owned by
the City, under, on and/or above the streets, alleys, sidewalks and other public
rights-of-way as follows: The location and description of each said
encroachment is more particularly described in Exhibit "A", attached hereto,
incorporated herein and made a part hereof for all purposes.
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69472:83385:DALLAS:1081189.2
2.
All maintenance and operation in connection with such encroachment, use
and occupancy shall be performed in strict compliance with the Charter,
Ordinances and Codes of the City and in accordance with the directions of the
Director of Transportation and Public Works of City, or his duly 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 Grantee of
responsibility and liability for concept, design and computation in preparation of
such plans and specifications.
3.
The parties agree that 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.
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 maintenance
or existence of such encroachment and use, Grantee 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.
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69472:83385:DALLAS:1081189.2
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, City shall
bear no responsibility or liability for damage or disruption of improvements
installed by Grantee or its successors, but City will make reasonable efforts to
minimize such damage.
6.
In order to defray all costs of inspection and supervision which City has
incurred or might incur as a result of the maintenance of the encroachments and
uses provided for by this Agreement, Grantee agrees to pay to City at the time
this Agreement is executed an application charge in the sum of
V-Q Dollars
7.
The initial term of this Agreement shall be thirty (30) years, commencing
on the date this Agreement is executed by the City of Fort Worth.
8.
Upon termination of this Agreement for any reason whatsoever, Grantee
shall, at the option of City and at no expense to City, restore the public right-of-
way and adjacent supporting structures 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.
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69472:83385:DALLAS:1081189.2
9.
It is further understood and agreed upon between the parties hereto that
the City streets, alleys, sidewalks and other public rights-of-way, including the
portions of such streets, alleys, sidewalks and other public rights-of-way to be
used and encroached upon as described herein, are held by City as trustee for
the public; that City exercises such powers over the streets 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
streets for the use and benefit of the public. It is accordingly agreed that
consistent with Grantee's rights, title and interest to its real property as provided
by law, that if the governing body of City, to wit, its City Council, should at any
time during the term hereof determine in its sole discretion to use or cause or
permit the said portions of the streets, alleys, sidewalks and other rights-of-way
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, then this Agreement shall be appropriately
modified and amended or, if necessary, canceled or terminated.
10.
Grantee understands and agrees that the granting of any encroachment
hereunder is not meant to convey to Grantee any right to use or occupy property
in which a third party may have an interest, and Grantee agrees that it will obtain
all necessary permission before occupying such property.
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69472:83385:DALLAS:1081189.2
Grantee agrees to comply fully with all applicable federal, state and local
laws, statutes, ordinances, codes or regulations in connection with the operation
and maintenance of said encroachments and uses.
12.
Grantee 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.
Grantee 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; that Grantee 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; that the doctrine of respondeat superior
shall not apply as between City and Grantee, its officers, agents, servants,
employees, contractors and subcontractors, and nothing herein shall be
construed as creating a partnership or joint enterprise between City and Grantee.
14.
Grantee 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
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69472:93385:DALLAS:1081189.2
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 maintenance, occupancy, use, existence or location of said
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 Grantee hereby
assumes all liability and responsibility for such claims or suits. Grantee 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 Grantee, its officers, agents, servants, employees,
contractors, subcontractors, licensees, invitees, or trespassers.
15.
Grantee 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:
Property damage, per occurrence $100,000
Bodily injury, per person $250,000
Bodily injury or death, per occurrence $500,000
with the understanding of and agreement by Grantee that such insurance
amounts shall be revised upward at City's option and that Grantee shall so revise
such amounts immediately following notice to Grantee of such requirement.
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69472:83385:DALLAS:1081189.2
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". Grantee agrees to submit a similar Certificate of Insurance annually
to City on the anniversary date of the execution of this Agreement.
Grantee 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 coverage required
herein shall include coverage of all Grantee's contractors.
16.
Grantee 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 its entirety in the deed records of Tarrant County, Texas. After
being so recorded, the original hereof 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 of the obligations of
Grantee, City shall be entitled to recover interest and reasonable attorney's fees.
18.
Grantee covenants and agrees that it will not assign all or any of its rights,
privileges or duties under this Agreement without the prior written approval of
City, and any attempted assignment without such prior written approval shall be
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69472:83385:DALLAS:1081189.2
void. Notwithstanding the foregoing, City agrees and consents to the granting of
a lien interest by Grantor to JPMorgpn Chase Bank, a New York banking
corporation, or any other lender and their successors and assigns (each
hereinafter referred to individually, as the "Lender"), and that in the event Lender
acquires title to the property more particularly described on Exhibit C attached
hereto and incorporated herein, Lender shall be entitled to benefits of Grantee
under this Agreement.
19.
This agreement shall be binding upon the parties hereto, their successors
and assigns.
EXECUTED this day of 2003
PNL FORT WORTH, L.P.,
a Delaware limited partnership
By: PNL FW GP, LLC,
a Delaware limited liability company
B ' � ,�y
David M. Porter, Manager
CITY OF FORT WORTH
By:__
Reid Rector, Asst. City Manager
A ST: A A TO FOR AND LEGALITY
LT PP7--,7s ;n7
City Secretary City Attorney-
Contract Authorization
8
Dat49472:83385:DALLAS:1081189.2 F 1, R 1 H V E I
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 Reid'RectOr, , , 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.
G VEN UNDER MY HAND AND SEAL OF OFFICE this day of
20 0-?
gmA pit a
ROSELLA BARNES
NOTARY PUBLIC
State of Texas
Comm.Exp.03-31-2005 Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority, a Notary Public in and for the
State of Texas, on this day personally appeared David M. Porter, 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 PNL FW GP, LLC, the
general partner of PNL Fort Worth, L.P., and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
, 2003.
Notary ublic St t of Texas
JOE-NS!ON
NOTARY PUBLIC
v. STATE OF TEXAS
)flipMY Comm.Exp.02-15-2004
]2004
9
69472:83385:DALLAS:108 1189.2
Exhibit A
Survey Detailing Encroachments
69472:83385:DALLAS:1081189.2
LIST OF ENCROACHMENTS
THE CHARLES A TANDY CENTER
I. SURFACE ENCROACHMENTS
1. Garage entrances and exits located on Belknap to the extent of any encroachment.
The survey is unclear as to the existence of any encroachments as to the garage
entrances and exits. Note also the metal rail for the air conditioner unit overhangs
from garage roof on the portion of the garage at the corner of Belknap and
Throckmorton Streets.
2. Parking garage wall encroaches 1.99'into Throckmorton Street.
3. Parking garage located over Throckmorton Street is 9.20' north of lot line into W.
Weatherford Street.
4. Building corner is 0.24' east of lot line.
5. Concrete column lies over property. line, and decorative metal framework
protrudes from buildingmall.
6. Building corner is 0.21' east of lot line.
7. Building comer is 0.46'west of lot line.
8. Concrete column lies over property line.
9. Building comer is 0.41 west of lot line.
10. Building corner is 0.29'west of lot line.
H. SUBTERRANEAN ENCROACHMENTS
1. Interior face of subterranean wall is on property line.
2. Interior face of subterranean wall is on property line.
3. Interior face of subterranean wall is on property line.
4. Interior face of subterranean wall is 9.95' east and 1.12' south of property line.
5. Interior face of subterranean wall is 9.95' east of property line.
6. Interior face of subterranean wall is 7.91' south of property line.
7. Interior face of subterranean wall is 7.98' south of property line.
8. Interior face of subterranean wall is 0.19'west of property line.
9. Interior face of subterranean wall is 0.16' west.of property line.
69472:83385:DALLAS:1133994.1
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0V17/2003 06:04 2143799003 PNL PAGE 03
V% IVIAUVO 11;1V rAA 914 YbZ U604 UNDERWOOD INC Q003/003
IMPORTANT
If the certificate holder is an ADDMQNAL INSURED, the policy(ies) must be endorsed. A statement
on this certificate does not confer rights to the careffigate holder in lieu of such endorsement(s).
If SUBROGATION is WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement. A statement on this certificate does not confer rights To the certificate
holder in lien of such endorsement(W.
DISCLAIMER
The Certificate of insurance on the reverse side of this form does not constitute a contract between
the Issuing inaurar(v), authorized representative or producer, and the coMficate holder, nor does it
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ACOR (2001101S)
City of'.Fort Worth, Texas
"nyor and Council Communication
DATE REFERENCE NUMBER 7GNAME PAGE
3/25/03 **C_19521 06TANDY 1 of 1
SUBJECT AUTHORIZE EXECUTION OF CONSENT AGREEMENT WITH PNL FORT WORTH,
L.P. FOR RIGHT-OF-WAY ENCROACHMENTS AT TANDY CENTER
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into a consent agreement
with PNL Fort Worth, L.P. authorizing use of the right-of-way for existing encroachments within the
Tandy Center.
DISCUSSION:
The downtown,property known as the Tandy Center has recently been purchased by PNL Fort Worth,
L.P., a Delaware Limited Partnership. Several above grade and below grade encroachments exist
within the property, which is bounded by Belknap, Throckmorton, West 3rd and Taylor Streets. David
Porter, manager for PNL Fort Worth, L.P., is requesting continuance of various encroachments which
exist within the property. The consent agreement shall require any future assignments of the
agreement to be approved by the City Manager or his/her designee.
The Encroachment Committee has reviewed this request and has recommended approval.
The proposed encroachment is located in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material effect on City funds.
RR:r
Submitted for City Manager's FUND ACCOUNTI CENTER I AMOUNT CITY SECRETARY
Office by: (to)
Reid Rector 6140
Originating Department Head:
Bob Riley 8901 (from) APPROVED 3/25/03
Additional Information Contact:
Jim Miller 8318