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HomeMy WebLinkAboutContract 41032 CITY SECRETARY EN A CONTRACT NO. �O CRO CHMENT AGREEMENT` STATE OF TEXAS § COUNTY OF TARRANT § 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 Planning and Development Department Director, hereinafter referred to as the "City", and CARLYLE/CYPRESS WEST 7TH LP a Delaware limited partnership, acting herein by and through its duly authorized Brian Parro, Vice President & Chief Financial Officer hereinafter referred to as "Grantee", Owner of the property located at 2853 Crockett Street, Fort Worth Texas 76107 ("Property"). WITNESSETH: 1. For and in consideration of the payment by Grantee of the fee set out below and the true and faithful performance of the mutual covenants herein contained, City hereby grants to Grantee 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: C? The location and L•d1est-cript'on 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 connection with such Improvement, use 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 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. 2 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. Grantee, 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, 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. 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, Grantee understands and agrees that City shall bear no responsibility or liability for 3 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 will incur as a result of the construction, maintenance, inspection or management of the encroachments and uses provided for by this Agreement, Grantee agrees to pay to City at the time this Agreement is executed a fee in the sum of-I:,. oIIars ($_ 1-1 5- 7. The term of this Agreement shall be for thirty years, commencing on the date this Agreement is executed by the City of Fort Worth. 8. Upon termination of this Agreement, Grantee 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 Grantee that if this Agreement terminates and Grantee 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. 4 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 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. 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. 5 11. Grantee 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. 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 and 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. 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 6 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 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. While this Agreement is in effect, 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: $1,000,000 Commercial General Liability 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. 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 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. 8 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 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. 9 EXECUTED this day of 120 R3 . City Grantee (Business Name) City of Fort Worth CARLYLE/CYPRESS WEST 7TH, LP, a Delaware limited partnership By: Carlyle/Cypress West 7th GP, LLC, a Delaware limited liability company By: Carlyle/Cypress Retail I, LP, a Delaware limited partnership By: Cypress Equities, LLC, a Texas limited liability company, its general partner � � � a� Rr� ian Parro, Director a °op°°Opoo0; President/ CFO Planning and Developmet+ - A 1600 d ATTEST: �� °o ° �t x� ved As To Fo m And Leg ality v d * 0000 00 ,Cy wr City SecretaW Assistant City Attorney NO M&C REQUIRED 10 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in nd for the State of Texas, on this day personally appeared ��il�''', nown 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. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 20 Notary Public in and for the State of Texas 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 —&yia4 —F0, D 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 Cavllie-f�1pvGSS I�P,Sf t��ur,and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this Z3 may of J , 20 10 . N tary Public in and for the State of Texas oCimme 12 © 500 West Seventh Street Suite gideon toal 1400 Fort Worth,Texas 76102 Tel 817.335.4991 Fax 817.877.1861 Date: 06-21-2010 Project: West 7V'Southeast Block Landscape Project No.09155.01 Exhibit A Description of Streetscape Improvements Southeast Block A. ROW Streetscape Improvements- Hardscape Currie Street, Morton Street,AND Crockett Street. 1. All sidewalks along Crockett Street will be comprised of Salt Finish Gray concrete,scored,or shake-on acid finish,colored concrete with a score pattern or clay pavers on concrete base slab with mortar setting beds at the corners. 2. Decorative pedestrian scaled street lights with banner supporting arms will be located within street ROW. 3. Waterproof duplex outlets within large tree wells along Crockett Street and Currie Street. 4. Low integrally colored concrete walls within the ROW at various locations and at steps. 5. Metal handrails with finish located at steps. 6. Step lights located within cheek walls adjacent to steps. 7. Overhead string lights to be suspended between the southeast and northeast blocks. 8. Handicap ramps will have side slope flares that will be brick on concrete sub-base with mortar setting bed to match sidewalks at comers. Ramps will consist of brick with 2'wide band of contrasting tactile pavers at bottom of ramps. ii 9. In-ground lights located in pavers or concrete outside the ramp at comer of the intersection of Crockett Street and Currie Street. 10. Up-Ilghts within planted tree wells along Currie Street,Crockett Street,and Morton Street. 11. Ends of concrete cheek walls capped with a faux-finish corten steel metal plate. 12. PVC drains and stub-outs from storm drain inlets. 13. Decorative metal poles for street signage. B. ROW Streetscape Improvements - Landscape Crockett Street ROW: 1. Small triangular open tree wells will be planted with a border of Liriope spicata and the large triangular open tree wells will be planted with a border of Liriope spicata or Variegated Liriope(see plans for variety location)and in-filled with Salvia, Moonbay Nandina and Spider Lily. 2. Planting beds that vary in length will have a border of Variegated Liriope and in-filled with Iris, Moonbay Nandina, Lindheimer Muhly Grass and Live Oak. 3. Planting beds that vary in length adjacent to the curb will contain Live Oaks and be bordered with Variegated Liriope.Understory shrubs include Lindheimer Muhly Grass, Iris,and Moonbay Nandina. 4. Trees in small tree wells will consist of Little Gem Magnolia and the large tree wells will be planted with Live Oak. 5. All trees will be provided with a sump if required(based on an on-site percolation test). C. ROW Streetscape Improvements - Landscape Currie Street ROW: 6. 5'wide planting beds along curb will be planted with a border of Liriope and in-filled with Salvia and Rosemary. 7. All trees along Currie Street will be Live Oak. 8. All trees will be provided with a sump if required(based on an on-site percolation test). D. ROW Streetscape Improvements - Landscape Morton Street ROW: 9. Bermuda grass sod will be planted on the south side of the walk. 10. Planting bed north of sidewalk to garage covered with decomposed granite mulch and planted with Lindheimer Muhly Grass as transformers vegetative screen. 11. All trees along Morton Street will be Live Oak. 12. All trees will be provided with a sump if required(based on an on-site percolation test). E. Alley Streetscape Improvements- Landscape Alley between Crockett and Morton Streets: 14. Large planting beds on south side of alley will be filled with decomposed granite. 7YOLLnaamo —115F-030a NWE39-1!'MSKLLJMll►MMO.LSIN3FGWVM13dVM3 SCW3MMA'WMVdADMOUMLMMMUaNWfW O C 3 � IVl_JL it I133U M — I I g _ Y Y U J � �I 133M18 3VmdnD P-T 133lllS OOOWG a m - g ebb 1M3f10Y�1117f7M MY 311Q'/77�0(Idp Mwwwpww/��a.w(Iw1PAa wawlwPw�uuar W W[lOw�i�1 AM-OiOC YO Vf wM7�1 i.Y�w�U IFS-Of0i 70 wf 7W F• 2� B - � � � t 1 O O O am O