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HomeMy WebLinkAboutContract 47656 MY SECRETAW �� `. CONTRACT NO. a� EASEMENT ENCROACHMENT LICENSE AGREEMENT r° Commercial 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, its duly designated Assistant City Manager or Planning and Development Director, and Hines VAV III Energy Way LLC, a Delaware limited liability company ("Licensee"), owner of the Property (as defined below). RECITALS WHEREAS, Licensee is the owner of certain real property situated in the City of Fort Worth, Tarrant County, Texas, more particularly described in the attached Legal Description of the Property(the "Property"); and WHEREAS, the City has (i) a twenty-five (25) foot wide sanitary sewer easement, (ii) a fifty (50) foot wide drainage easement, (iii) a ten (10) foot wide sanitary sewer easement and (iv) two, five (5) foot wide sanitary sewer easements (each, an "Easement" and collectively, the "Easements") in the Property as shown on the maps attached to this Agreement as Exhibit"A" and incorporated herein for all purposes; and WHEREAS, Licensee desires to construct/place and maintain certain improvements which will encroach onto the Easement; and WHEREAS, City will allow the encroachments under the terms and conditions as set forth in this Agreement to accommodate the needs of the Licensee. NOW, THEREFORE, the City and Licensee agree as follows: AGREEMENT 1. City, in consideration of the payment by the 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 upon and occupy a portion of the City's Easements for the purpose of retaining walls, electric conduit and a storm drain pipe (collectively, the "Encroachments") as described in and at the locations shown on Exhibit "A" but only to the extent shown thereon. Upon completion of the Encroachments, Licensee agrees to be responsible for maintaining the Encroachments within and above the Easements. Licensee shall not expand or otherwise cause the Encroachments to further infringe in or on City's Easements beyond what is specifically described in the Exhibit(s) attached hereto. 2015 Easement Encroachment Agreement-Commercial OFFICIAL RECORD Page 1 of 14 CITY SECRETARY Rev.02/2015 FT.WORTH,TX 2. All construction, maintenance and operation in connection with such Encroachments shall be performed in strict compliance with this Agreement and the City's Charter, Ordinances and Codes and in accordance with the directions of the Director of the Transportation and Public Works or the Director of the City's Water Department, or his or her duly authorized representative. Licensee shall submit all plans and specifications to the applicable Director or his or her duly authorized representative prior to the construction of the Encroachments. Licensee shall not commence construction of the Encroachments until receiving written approval by the Director (which approval shall not be unreasonably withheld, conditioned or delayed), but such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon prior written notice to Licensee, except in the case of an emergency, Licensee agrees that City may enter and utilize the referenced areas at any time for the purpose of installing, repairing, replacing, or maintaining improvements to its public facilities or utilities necessary for the health, safety and welfare of the public or for any other public purpose. City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Encroachments installed by Licensee, but City will make reasonable efforts to minimize such damage. In the event that City's work in any of the Easements will require the temporary removal or relocation of any of the Encroachments, following completion of City's work in such Easement, Licensee shall be permitted to replace and/or reinstall the applicable Encroachments in substantially the same location as depicted on Exhibit "A" attached hereto. 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 within any of the Easements is made more costly by virtue of the construction, maintenance or existence of the Encroachments, Licensee shall pay to City an amount equal to such additional cost as reasonably determined by the Director of Transportation and Public Works or the Director of the Water Department, or said Director's duly authorized representative. 4. Licensee agrees to pay to City at the time this Agreement is requested an application fee of$325.00 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. 2015 Easement Encroachment Agreement-Commercial Page 2 of 14 Rev.02/2015 5. The term of this Agreement shall be for 30 years, commencing on the date this Agreement is executed by City. However, this Agreement shall terminate upon Licensee's non-compliance with any of the terms of this Agreement, subject, however, to Licensee's cure rights set forth below. City shall notify Licensee in writing of the non- compliance, and if not cured within 30 days of receipt of such notice, this Agreement shall be deemed terminated, unless such non-compliance is not susceptible to cure within 30 days, in which case this Agreement shall be deemed terminated in the event that Licensee fails to commence and take such steps as are necessary to remedy the non- compliance within 30 days after written notice specifying the same, or having so commenced,thereafter fails to proceed diligently and with continuity to remedy same. 6. It is further understood and agreed between the parties hereto that the Easements 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 Easements 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 Easements 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 a Easement to be used for any other public purpose,to the extent expressly permitted by the terms of the applicable Easement grant, that does not preclude the use of the Encroachments on the Property, 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 the Encroachments and the public purpose. 7. 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, ARISING OUT OF OR IN CONNECTION WITH, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF THE ENCROACHMENTS AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, ELECTED OFFICIALS, OR INVITEES OF THE CITY; AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND 2015 Easement Encroachment Agreement-Commercial Page 3 of 14 Rev.02/2015 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. 8. 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 $1,000,000 Commercial General Liability 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 promptly following notice to Licensee of such requirement. Licensee shall provide written notice to the Building Official of the City of Fort Worth at least 30 days prior to the cancellation or amendment of the insurance policy required hereunder. A copy of such Certificate of Insurance is attached as Exhibit "B" and incorporated herein for all purposes. 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 the Encroachments and the cleaning and restoration of the Easements. All insurance coverage required herein shall include coverage of all Licensees' contractors and subcontractors. 9. Licensee agrees to deposit with 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 Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth. 2015 Easement Encroachment Agreement-Commercial Page 4 of 14 Rev.02/2015 10. 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 the Encroachments. 11. 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. 12. 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. 13. Licensee agrees and acknowledges that this Agreement is solely for the purpose of permitting Licensee to construct, maintain and locate the Encroachments over or within the Easements and is not a conveyance of any right,title or interest in or to the Easements 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. 14. In any action brought by the City for the enforcement of the obligations of the Licensee hereunder, if the City is the prevailing party in such action, City shall be entitled to recover interest and reasonable attorney's fees. 15. The parties agree that the duties and obligation contained Sections 3 and 4 shall survive the termination of this Agreement. 2015 Easement Encroachment Agreement-Commercial Page 5 of 14 Rev.02/2015 16. Except to the extent otherwise set forth below, 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 City, and any attempted assignment without such written approval shall be void. In the event 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 of its lien on the Property 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 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. 17. 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. 18. This Agreement shall be binding upon the parties hereto, their successors and assigns. SIGNATURES APPEAR ON FOLLOWING PAGE] 2015 Easement Encroachment Agreement-Commercial Page 6 of 14 Rev.02/2015 THIS AGREEMENT may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. City Licensee: CITY OF FORT WORTH Hines VAV III Energy Way LLC By:.ai By: Hines US Office Value Added andle mood Venture III LLC, its sole member Director Planning and Develo ment By: Hines US VAV III MM LLC, its Date: , 2 managing member By: Hines Interests Limited Partnership, its managing member By: Hines Holdings, Inc., its gyiqal pa By: David J. Congdon Senior Managing Director ATTEST: Approved As To Form and Legality o 'o. City a y Of F®� Assistant Cqy Attorney o 4� a.. °0°a '3t'°il �;*. °« _i ,on OFFICIAL RECORD CITY SECRETARY 2015 Easement Encroachment Agreement-Commercial FT. WORTI>k,%gTX of 14 Rey 15 STATE OF TEXAS § COUNLY OF TARRANT § i cost ment was acknowledged before me o , 201 by rwood, Director of the Planning and ev lopment Department of the City ort WPp eN h. s, R F. FOREMAN r f lotary Public,state of T exos =:�:.. .••, My Commission Expires AA�i12b, 2017A. otary Public, State of Texas After Recording Return to: Cassandra Foreman Planning and Development Department 1000 Throckmorton Street Fort Worth TX, 76102 2015 Easement Encroachment Agreement-Commercial Page 8 of 14 Rev.02/2015 STATE OF �� VU(/- § COUNTY OF § This instrument was acknowledged before me on this I day of � C h , 2016, by David J. Congdon, as Senior Managing Director of Hines Holdings, Inc., as general partner of Hines Interests Limited Partnership, as managing member of Hines US VAV III MM LLC, as managing member of Hines US Office Value Added Venture III LLC, as sole member of Hines VAV III Energy Way LLC, a Delaware limited liability company, on behalf of said limited liability company. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ( day of 20�. L�A n EMILY DEBIASE Notary Public-State of New York Notarylublic in and for the N0.01DE6269445 Qualified in Queens County State of My Commission Expires Sep 24, 2016 2015 Easement Encroachment Agreement-Commercial Page 9 of 14 Rev.02/2015 LEGAL DESCRIPTION OF THE PROPERTY Lot 1, Block 1, Pier 1 Addition, an addition to the City of Fort Worth, Tarrant County, Texas, according to the plat thereof recorded in Cabinet A, Slide 10398 of the Plat Records of Tarrant County, Texas. 2015 Easement Encroachment Agreement-Commercial Page 10 of 14 Rev.02/2015 EXHIBIT "A" Map of Encroachment and Easement 30 e'E SSMH "�/ / iRAP� 01 P SSYH MRK 0 p AH 4 AREA SEWER TSHT � 51 /. / \ �, to SSMH/ /123R J '' , �.?'�' / ✓,. \ 6 - - �T 1R, BLOCK 1 PIER 1 ADDITION to / - �l � r • `- O 4b- 51, b.51RBFR OAREA °(HOT" CATES—CLARK PROPLENCROACHMENT R= t PIER t "DDH. 14800 Quorum Drive,Suite 200 WLLIAN BUSSELL SURVEY. ABSTRACT NO. 1248 Dallas,Tens 75254 A. FAMNSON SURVEY, ABSTRACT NO. 12M 972.385.2272 FORT WORTH. TARRANT oOUNTY. TUAS TWE F-3751 2015 Easement Encroachment Agreement-Commercial Page 11 of 14 Rev.02/2015 - 1 "=10' H =5' V A'ETANVIMC am AF— EXIST WrAI NNiG --- _ _ --- t - -E ME Aft€ PIA. l R °HMENIT"EX148R 044CATES-CLARK PROPOSED �I O ' AD14800 Quorum Drive,Suite 200 MIM RUSSELL SURVEY, ABSTRACT NO. 1248 Dallas,Ts38a 75254 A. ROBINSON SURVEY. ABSTRACT NO. 1289 972.3852271 FORT WORTH, TARRANT COUNTY. TEXAS TBPE F-3751 2015 Easement Encroachment Agreement-Commercial Page 12 of 14 Rev.02/2015 ssMCAB t F TWC VAULT SSMHO EWCN Lp CONDUIT-\ RETAMG IOU LL (nP) e . A' . aEC CONDOr LP U ENCROACHMENT AREAS I�R� T"DHW GdO CATES-CLARK PROPOSED LOT 1It. BLOCK 1 PIER 1 ADDN. 148M Ommum Ddm Suite 2,W WILLIAM RUSSELL SURVEY, ABSTRACT NO. 124x! Daiwa,Tezaes75$54 A ROBINSON SURVEY, ABSTRACT NO. 120 t er 'f� FORT WORTH, TARRANT COUNTY, TEAS TM T__3751 2015 Easement Encroachment Agreement-Commercial Page 13 of 14 Rev.02/2015 it 0+60A C x I Ll_ 4 Iz, fn 4- 11 14! M ........... -- lilt ........... 2015 Easement Encroachment Agreement-Commercial Page 14 of 14 Rev.02/2015 Exhibit B Certificate of Insurance A�® CERTIFICATE OF LIABILITY INSURANCE DATE THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. 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 lieu of such endorsement(s). PRODUCER CONTACT Marsh USA Inc. NAME: 500 Dallas St,Suite 1500 PHONE FAX AIC No Houston,TX 77002 E-MAIL Attn:Houston.Certs@marsh.com ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC# INSURER A:Zurich American Insurance Company 16535 INSURED INSURER B:N/A N/A Hines VAV III Energy Way LLC cto Hines Interest Umited Partnership INSURER C:N/A N/A 2600 Post Oak Blvd INSURER D: Houston,TX 77056 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: HOU-002741928-01 REVISION NUMBER:10 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSRTYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR POLICY NUMBER MM/DD MM/DD/YYYY A X COMMERCIAL GENERAL LIABILITY GLO5087526-11 10/01/2015 10/01/2016 EACH OCCURRENCE $ 1,000,000 -DAMAGE TO U_ CLAIMS-MADE M OCCUR -PREMISES(EaENT occurrence) $ 250,000 MED EXP(Any one person) $ PERSONAL 8 ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY[:]JECOT- M LOC PRODUCTS-COMP/OP AGG $ 2,000,000 OTHER: $ AUTOMOBILE LIABIUTY COMBINED SINGLE LIMIT $ Ea accident ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS AUTOS PROPERTY DAMAGE $ NON-OWNED per accident HIRED AUTOS AUTOS HUMBRELLA UAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED I I RETENTION$ $ WORKERS COMPENSATION PER OTH- AND EMPLOYERS'LIABILITY Y/N STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVEN/A E.L.EACH ACCIDENT $ OFFICERIMEMBER EXCLUDED? (Mandatory in NH) E.L.DISEASE-EA EMPLOYE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT 1$ DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached H more space Is required) Re:Easement Encroachment License Agreement CERTIFICATE HOLDER CANCELLATION The City Of Fort worth SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Attn: Planning and Deveopment Department THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 1000 Throckmorton Street ACCORDANCE WITH THE POLICY PROVISIONS. Fort Worth,TX 76102 AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Christian Ryan 2 ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014101) The ACORD name and logo are registered marks of ACORD