HomeMy WebLinkAboutContract 63777Date Received: 8/5/2025 Record Number: PN25-00032
Time Received: 3:15 p.m. City Secretary No.: 63777
PUBLIC PROPERTY RIGHT-OF-WAY ENCROACHMENT LICENSE
AGREEMENT
TIER I
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 FWCS Property Owner, LLC, a
Delaware limited liability company ("Licensee"), acting by and through its duly authorized
representative
RECITALS
WHEREAS, Licensee is the owner of the real property located at 2458 N Main St.,
Fort Worth, Texas 76164 ("Property"), being more particularly described as, Lots 37-44,
Block 218, of Googins Subdivision Addition, an addition to the City of Fort Worth, Tarrant
County, Texas, as recorded in Deed Records, by Instrument Number D223018531; and
WHEREAS, the City owns a right-of-way (the "Public Property") adjacent to the
Property, dedicated by plat, depicted on the final plat recorded in the plat records of Tarrant
County, Volume 106, Page 111; 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
"A," but only to the extent shown thereon, for the purpose of constructing, installing, and
maintaining an ADA ramp (the "Encroachment"). Upon completion of the Encroachment,
Licensee agrees to be responsible for maintaining the Encroachment within the Public
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OFFICIAL RECORD Page I of I I
CITY SECRETARY Updated 2024
FT. WORTH, TX
Property. Licensee shall not expand or otherwise cause the Encroachment to further
infringe in or on the Public Property beyond what is specifically described in Exhibit "A."
F1
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 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
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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 One Thousand Twelve Dollars and Fifty Cents ($1012.50).
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.
1.1
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.
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
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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 "A." 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 "B"
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.
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.
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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.
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
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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.
Prior to the end of the term of this Agreement, Licensee may submit a new
encroachment application to the City. The City will not unreasonably withhold or delay
approval of such application provided that the Encroachment follows the then current
City codes and compliance.
20.
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.
21.
This Agreement shall be binding upon the parties hereto and their successors and
assigns.
22.
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]
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EXECUTED to be effective on the date signed by the City's Director of Development
Services Department
City:
CITY OF FORT WORTH
By: Dalton Harrell (Aug5, 202510:04:45 CDT)
D. J. Harrell
Director, Development Services Department
Date:
ATTEST:
man
paF fORt spa
p�8 o.IP
Approved As To Form and Legality
Qdan4nE�ps6b
Jannette Goodall,
Hye Won Kim
City Secretary
Assistant City Attorney
Contract Compliance Manager:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
ensuring all performance and reporting
requirements.
Kandice Merrick
Development Services Manager
Tier I ROW Encroachment Agreement OFFICIAL RECORD
CITY SECRETARY Page 7 of I I
FT. WORTH, TX Updated 2024
Licensee:
FWCS Property Owner, LLC
a Delaware limited liability company
by: FWCS Topco, LLC
a Delaware limited liability company
by: DS Exchange Co., LLC
a Delaware limited liability company
By:
Name: Dan Schryer
Title: Pr sident
Date: 7Z/ LS
STATE OF _t' a I ��irg §
COUNTY1 .���..
•
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
c , on this day personally appeared Dan Schryer, President, known to me to be
the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he or she executed the same for the purposes and consideration therein expressed, as
the act and deed of DS Exchange Co., LLC, the manager of FWCS Topco, LLC, the sole
member of FWCS Property Owner, LLC, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2-" "day of
/otaZryPublic
2025.
in and for the
State of -CG I 4 n inn
Tier I ROW Encroachment Agreement
NANCY KIM
..N0TMY/UNUC•=04W2a
cosWC
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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 5th day of
August , 2025.
Notary Public in and for the State of Texas
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EXHIBIT A
Depiction and description of the Encroachment
Tier 1 ROW Encroachment Agreement
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VICINITY MAP
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DEVELOPER: DM2 CATTLEMEN'S STEAKHOUSE WESTWOOD PROFESSIONAL SERVICES
CONTACT: DREW MARTIN ADA RAMP ENCROACHMENT PM: PRESTON BARTLEY
PO BOX 470007 AGREEMENT 4060 BRYANT IRVIN RD.
FT. WORTH, TX 76147 FORT WORTH, TX 76109
PH: 817.608,6246 PN25-000XX PH: 817.412.7155
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P. R. T. C. T.
/ FWCS PROPERTY OWNER, LLC
INST. NO. DU3018531
O.P.R.T.C.T.
CITY OF FORT WORTH
L� I (PORTION OF LOTS 41 & 42;s
LOT 41 VOL 1631, PG. 508
D.R.T.C.T.
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EASEMENT LINE TABLE
LINE BEARING DIST
L 1 S89 40'02 -W B. 30'
L2 N89 40'02 E 8.30'
SURVEYOR PREPARING IHIS IJf I8II:
11101% WIEA & ASSOCIATES INC.
2201 E LAMAR BLVD., SUITE 200E ARLINGTON, TEXAS 7600�
5151 HEADQUARTERS DR., SUITE 115 PLANO, TEXAS 75024
Texas Firm Registration No. F-2776 www.WierAssociates.com (817) 467-7700
Texas Board of Professional Land Surveying Registration No. 10033900
LOT 42
"X" CUT
FOUND
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CM CONTROLLING MONUMENT
® ENCROACHMENT
SIDEWALK ENCROACHMENT
FORT WORTH, TARRANT COUNTY, TEXAS
DRAWN BY:JG SHEET NO. 1 OF 2 I R1'
APPROVED:ALS
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FIELD NOTES — DESCRIPTION
SIDEWALK ENCROACHMENT
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BEING A TRACT OF LAND LOCATED IN THE ISAAC THOMAS SURVEY, ABSTRACT NO. 1526, TARRANT
COUNTY, TEXAS, BEING A PORTION OF N. MAIN STREET (80' RIGHT—OF—WAY), AND BEING MORE
PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT A POINT IN THE EAST RIGHT—OF—WAY LINE OF N. MAIN STREET, THE WEST LINE OF
A TRACT OF LAND DESCRIBED IN A DEED TO FWCS PROPERTY OWNER, LLC, RECORDED IN
INSTRUMENT NUMBER D223018531, OFFICIAL PUBLIC RECORDS, TARRANT COUNTY, TEXAS
(O.P.R.T.C.T.), AND THE WEST LINE OF LOT 38, BLOCK 218, J.B. GOOGINS SUBDIVISION, AN
ADDITION TO THE CITY OF FORT WORTH, TARRANT COUNTY, TEXAS, ACCORDING TO THE PLAT
RECORDED IN VOLUME 106, PAGE 111, PLAT RECORDS, TARRANT COUNTY, TEXAS (P.R.T.C.T.), FROM
WHICH A MAGNAIL FOUND BEARS N 00'19'58" W, 49.02 FEET, SAID MAGNAIL BEING THE
NORTHWEST CORNER OF SAID FWCS TRACT AND THE NORTHWEST CORNER OF LOT 37 OF SAID
BLOCK 218, J.B. GOOGINS SUBDIVISION;
THENCE S 00'19'58" E, ALONG THE EAST RIGHT—OF—WAY LINE OF SAID N. MAIN STREET AND THE
WEST LINE OF SAID FWCS TRACT AND THE WEST LINE OF SAID BLOCK 218, J.B. GOOGINS
SUBDIVISION, A DISTANCE OF 60.05 FEET TO A POINT;
THENCE S 89'40'02" W, DEPARTING THE EAST RIGHT—OF—WAY LINE OF SAID N. MAIN STREET AND
THE WEST LINE OF SAID FWCS TRACT AND THE WEST LINE OF SAID BLOCK 218, J.B. GOOGINS
SUBDIVISION, A DISTANCE OF 8.30 FEET TO A POINT;
THENCE N 00'19'58" W, A DISTANCE OF 60.05 FEET TO A POINT;
THENCE N 89'40'02" E, A DISTANCE OF 8.30 FEET TO THE PLACE OF BEGINNING AND CONTAINING
498 SQUARE FEET OF LAND, MORE OR LESS.
NOTES:
(1) ALL BEARINGS SHOWN HEREON ARE CORRELATED TO THE TEXAS STATE PLANE
COORDINATE SYSTEM, NORTH CENTRAL ZONE 4202, NAD OF 1983, AS DERIVED BY FIELD
OBSERVATIONS UTILIZING THE RTK NETWORK ADMINISTRATED BY ALLTERRA CENTRAL, INC.
(2) THIS EXHIBIT WAS PREPARED WITHOUT BENEFIT OF A CURRENT TITLE COMMITMENT.
(3) THIS SURVEY WAS MADE ON THE GROUND DURING THE MONTH OF SEPTEMBER 2024
UNDER THE DIRECT SUPERVISION OF AARON STRINGFELLOW. R.P.L.S. NO. 6373.
' SURVEYOR PREPARING IHIS EXHIBI N
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AARON L STRINGFELLOW
6373••• ":
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SU
s VINR WIER & ASSOCIATES INC. SIDEWALK ENCROACHMENT
2201 E. LAMAR BLVD., SUITE 200E ARLINGTON, TEXAS 76W FORT WORTH, TARRANT COUNTY, TEXAS
5151 HEADQUARTERS DR., SUITE 115 PLANO, TEXAS 75024 DRAWN BY: JG I
3 Texas Firm Registration No. F-2776 www.WerAssociates.com (817) 467-7700 1] SHEET NO. 2 OF 2
Texas Board of Professional Land Surveying Registration No. 10033900 APPROVED
I REV.
CNOQOOaCHHEHV WHEM
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GRAPHIC SCALE IN FEET
SIDEWAL
ENCROACHMEN
I
TBPELS ENGINEERING FIRM NO. 11756
TBPELS SURVEYING FIRM NO. 10074301
WestwoodFOR WORTHRYANT IRVIN ROAD
FORT WORTH, TX 76109
817.412.7155
DRA WN BY CHECKED BY SCALE DA TE JOB NUMBER
KLC HPB I 1 "=30' I 2/3/2025 I 0044981.00
I_ E G E r--,j
T ENCROACHMEN1 AREA
CATTLEMEN'S STEAK HOUSE PATIO IMPROVEMENTS
ENCROACHMENT AGREEMENT
LOCATED IN THE CITY OF FORT WORTH, TEXAS
BEINC OUT OF THE JAMES BLACKWELL SURD, ABSTRACT NO. 148
TARRANT COUNTY, TEXAS
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SECTION @ ADA RAMP
NOT TO SCALE
IBPELS ENGINEERING FIRM NO. 11756
TBPELS SURVEYING FIRM NO. 10074301
SECTION @ ADA LANDING
NOT TO SCALE
Westwood8l7.412.71.,FOR WORTHRYANT IRVIN ROAD CATTLEMEN'S STEAK HOUSE PATIO IMPROVEMENTS
FORT WORTH, TX76109 ENCROACHMENT AGREEMENT
LOCATED IN THE CITY OF FORT WORTH, TEXAS
DRAWN BY CHECKED BY SCALE DATE JOB NUMBER BEING OUT OF THE JAMES BLACKWELL SURVEY, ABSTRACT NO. 148
KLC HPB ( 1 "=30' I 2/3/2025 I 0044981.00 TARRANT COUNTY, TEXAS
EXHIBIT B
Certificate of Insurance
Tier I ROW Encroachment Agreement
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