HomeMy WebLinkAboutContract 44791 ".0
CT",
RIGHT. F A NO*
ENCROACHMENTAGREEMENT
(COMMERCIAL)
THIS AGREEMENT is made and entered into by and between the City of Fort
Werth, a municipal corporation of Tarrant County, Texas, acting herein by and through
its duly authorized City Manager or its duly authorized orized .ssistant City Manager or
Planning and Development Department Director, hereinafter referred to as the "City", a nd
Behring r Harvard Burnett plaza LP, a Teas limited partnership, Owner of the property
located at 800 Cherry Street, Fort Worth,, Texas ("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 ardor 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 ether public rights-of-
way, su.eh Ire rove is are described as follows:
Exterior signage identifying the business location.
The location and description of said Improvement ent and the encroachment is more
particularly describe in Exhibit ", attached hereto incorporated herein and ado a
part hereof for all, purposes.
2.
All construction,action, ma ntenance and operation in connection with such
Improvement, use and occupancy shall be performed in suet 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 Works of City, or Ills duly
authorized representative. All plans and specifications thereof shall he subject to the
V E 0, Ep I OFFICIAL RECORD
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CITTSECRETARY
2012 ROW Encroachment Agreement-Comfiner ial T*ge I of'11.
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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 com A putation 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 n*ghts-of-way involved, except as described
herein and shown on the hereinabove referred to Exhibit "A".
411
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
subdivis,ions,. 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 Direct-or 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 RO,W Encroachment Agreement-Commercial Page 2 of 11
6.
In order, to defray all costs of inspection and supervision which City has incurreu
or will incur as a result of the construction, maintenance, inspection or management of
the encroaclu-nents 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 tennis, of this Agreement by the
Licensee. City shall notify Licensee of the non-compliance and IT I not cured within thirty
days this Agreement shall be deemed, terminated,
81,
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.
90
it is further understood and agreed upon between the parties hereto that the public
rights-of-way, alleys, sidewalks ("public ri gbt-of-way") to be used and encroached uponl
as described herein,, are hold by City as trustee for the public; that City exercises such
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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-o,f- vat for the use and benefit of the
public. It is accordingly agreed that if the goveming body of City may at any time during
the ten-n hereof determine in its sole discretion to use or cause or permit the night 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 n'ght, 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, ordinances, codes or regulations in connection with the construction, operation
and maintenance of said 'Improvement, encroachment and uses.
U.,
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,
servant or employee of City and Licensee shall have exclusive control of and the
2012 ROW Encroachment Agreement-Commercial Page 4 of I I
.............
exclusive right to control the details of its operations,, and all persons performing same,
and shall be solely resp�onsible 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, em loyees, contractors and subcontractors, and nothing, herein shall be
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constnied 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,
SUBCONTRACT ORS, LICENSEES OR INUIT S OF THE CITY; AND
LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR
SUCH CLAIMS OR SUITS. LICENSEE SHALL LIKE,WISE 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,, EMPLOYEESl
CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR
TRESPASSERS.
15,
20,12 ROW Encroachment,Agreement-Commercial Page 5 of 1 1
While this Agreement is in effect, Licensee agrees to fumish City with a
Certificate of Insurance, narning City as certificate holder, as proof that it has secured and
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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 tbllowing:
$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 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.
1710
2012 ROW Encroachment Agreement-Commercial Page 6 of I I
..........
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,
pn'v*le 1 without the p *or written approval of the City
i ges or duties under this contract p*
or
or designee. Any attempted assignment without prior written approval will be
vo'id.
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 day of ............ 2013.
2 1 2 ROW Encroachment Agreement-Commercial Page 7 of 11
City Licensee
City of Fort Worth Behringer Harvard Burnett Plaza LP,
Bly: Behringer Harvard Burnett Plaza GP,LLC
a Delaware limted liability company
its general partner
.don
By: By*-
RANDLE HARWOCK) Greg d
r Br e
DIRECTOR 009"Ie
PLANNING & DEVELOPMENT Vice President
ATTEST,-, Approved As, To Fonn and Legality
City Secret Assistant City Attorney
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OFFICIAL R,ECIORD
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CITY SECRETARY
no WORTHo'TX
2 012 ROW Encroachment Agreement-Clommercial J8 Of 1 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 Randle Harwood, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he/she
exeUlted the same for the purposes and consideration therein expressed, as the act and
deed of the CI*ty of Fort Worth, and in the capacity therein stated.
IV E UNDER MIYHAND AND SEAL OF OFFICE this day of
1�0
CASSANDR
NotarY Pubil
my commissim E,xpliles
AprH 260 2017
N.00F
Notary Public in and for the
State of Texas
201 2 ROW Encroachment Agreement-Commercial Page 9 of I I
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 Greg Brooke known to me to be, the person whose
name is subscn'bed 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 ehring,er Harvard Burnett Plaza LP, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this c' day of
-A L)G 2013.
Notary Public in and for the
State of Texas
Tmm Lee Ann Wever
Notary Public,
or, J
State of Texas
Comm. Exp.07'-05-14 f,
14 14 14 4%1% RO 14
201 2 ROW Encroachment Agreement-Commercial Page 10 of 11
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ISSUED IS CER71FICATE IS ASA mATrER OF INFORMATION ONLY AND,, ;A CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS
ERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND.,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
IMPORTANT:BELOW'. THIS CERTIFICATE OF INSURANCE DOES,NOT CONSTITUTE A CONTRACT BETWEENTHE ISSUING INSURER(S),AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.,
the terms and conditions of the policy,,certain policies may require an endorsemenL A statement on this certificate does nottonfer rights tothie
cedificate
holder of y
Willis North Anorica, Inc. PHONE
26 Century Blvd. x-n, 877-945i-7n.8
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Holder • Additional
but subject to policy M IM IM conditions.
e-, Burnett Plaza,, 801 Cherry Sitre!et, Ft. Worth, TX •
HIM . .....
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN -i
ACCORDANCE WITH THE POLICY'P;ROVISIONS.
City of■w M
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Fort worth
Planning r Development
Attn: David Schroeder
1000 Throckmorton
Fort Worthr
N 194
AGENCY CUSTOMER I . 22014014
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'� ADDITIONAL, REMARKS S Page-.of —
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TIER BRIT. Inc.
Willis North America, Inc. 17300 Dallas Fa ay
Poucy Numlwt suite 1010
Dallas,,s TX 75248
GLA5911262301
CAMMt NAI COM
Zuricch American Insurance CoppanX 116535-004 EFF I DATE: iii 3112013
ADDITIONAL REMARKS
THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACC D FORM,
-1 2 CERTIFICATE OF LIABILITY INSURANCE I NUMBER. = I "
+ehringer Harvard Burnett Plaza (Borrower SF isa Named Insured.
,ACIORD 101 (2008/011) Coll. 195,92,9 Tpl:16 5 517 9 Curt.2 0,2 7 2 0 4 9 @20"08 ACORD,CORPORATION.All rights reserved.
The ACORD name and logo are registered marks of'ACORD