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HomeMy WebLinkAboutContract 48614 CITY SECRETARY CONTRACT N4.2 EASEMENT ENCROACHMENT LICENSE AGREEMENT 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 _1455 Magnolia, LLC [full legal name], a_Limited Liability Company [type of entity] ("Licensee"), acting by and through its duly authorized Managing Member [title], owner of the real property located at 1465 Magnolia Ave. , Fort Worth, TX 76_104 ("Property"). 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; and WHEREAS, the City has a Drainage easement (the "Easement") in the Property as shown on the map 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 encroachment 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 Easement for the purpose of a new mixed-use_building (the "Encroachment") as described in and at the location shown on Exhibit "A" but only to the extent shown thereon. Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining the Encroachment within and above the Easement. Licensee shall not expand or otherwise cause the Encroachment to further infringe in or on City's Easement beyond what is specifically described in the E ' s)-attached-h�gtol OFFICIAL k CORO 2015 Easement Encroachment Agreement-Commercial v ge 1 of 12 CITY SECRET�!i�. 1465 Magnolia Ave FT.WORTH,Tx`R v.02/2015 2. All construction, maintenance and operation in connection with such Encroachment, use and occupancy 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 Encroachment. Licensee shall not commence construction of the Encroachment until receiving written approval by the Director, 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 Encroachment installed by Licensee, but City will make reasonable efforts to minimize such damage. 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 the Encroachment and use, Licensee shall pay to City an additional 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 12 1465 Magnolia Ave 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. City shall notify Licensee in writing of the non-compliance, and if not cured within 30 days, 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 with 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 Easement to be used and encroached upon as described herein, is held by City as trustee for the public; that City exercises such powers over the Easement 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 Easement 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 Easement to be used for any other public purpose, that does not preclude the use of the Encroachment 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 Encroachment 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 HIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH, 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 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 2015 Easement Encroachment Agreement-Commercial Page 3 of 12 1465 Magnolia Ave Rev. 02/2015 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 immediately following notice to Licensee of such requirement. Such insurance policy shall not be canceled or amended without at least 30 days prior written notice to the Building Official of the City of Fort Worth. 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 Encroachment and the cleaning and restoration of the Easement. 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. 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 Encroachment and uses. 2015 Easement Encroachment Agreement-Commercial Page 4 of 12 1465 Magnolia Ave Rev.02/2015 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 Encroachment over or within the Easement and is not a conveyance of any right, title or interest in or to the Easement 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, 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. 16. 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 by a secured lender of Licensee or assignment to a secured lender by Licensee in the event of 2015 Easement Encroachment Agreement-Commercial Page 5 of 12 1465 Magnolia Ave Rev.02/2015 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 Licensees' 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 12 1465 Magnolia Ave Rev. 0212015 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 OO WO 1455 Magnolia, LLC_ By: By:w o dle Hard Name: Dak Hatfield Director Title: Managing Member Planning and Dev opment Date: , 20_9 EST: n Approved As To Form and Legality City Secretary Assistant Ci Attorney ........... zr 'FxAs OFFICIAL RECORD CITY SECRETARY FT.WORTHS TX 2015 Easement Encroachment Agreement-Commercial Page 7 of 12 1465 Magnolia Ave Rev. 02/2015 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. L rlYrY te: 0 lie Wqste-rnian Development Manager STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me o -1 , 2011 by Randle Harwood, Director of the Planning d Development De ment of the City of Fort Worth, on behalf the City of Fort Wort . -- otary Public, State of Texas CASSANDRA F. FOREMAN Notary Public,State of Texas My Commission Expires April 26, 2017 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 12 1465 Magnolia Ave Rev.02/2015 STATE OF e4A,��y § COUNTY OF § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared OW (title), 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 S �i int C a Q61t itsj <..�i �, 110 , and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of -. No ry Public in and for the Tyler l3accus Commission Expires State of „-� }--` 01-31-2017 2015 Easement Encroachment Agreement-Commercial Page 9 of 12 1465 Magnolia Ave Rev.02/2015 LEGAL DESCRIPTION OF THE PROPERTY PROPERTY: Being Lots 1,2, 3,4,29,30;31 and 32,Block C,of MCANULTY AND NYE'S SUBDIVISION OF BLOCK 29 of the FIELDS WELCH ADDITION, an Addition to the City of Fort Worth, Tarrant County,Texas,according to the Plat thereofrecorded in Volume 63,Page 66,PlatRecords,Tarrant County, Texas. 2015 Easement Encroachment Agreement-Commercial Page 10 of 12 1465 Magnolia Ave Rev. 02/2015 EXHIBIT "A" Map of Encroachment and Easement 2015 Easement Encroachment Agreement-Commercial Page 11 of 12 1465 Magnolia Ave Rev. 02/2015 6$-Z TA.P/JfMET 656-Z tD.PM 655-2 i.O.PAPAPii 652$ ROOFR"Q 22 S.F. R.O.W. ENCROACHMENT �$ FOR AWNING - OlDRCO? fQSfROOi 41 S.F. R.O.W. ENCROACHMENT FOR AWNING 1465 WEST MAGNOLIA 1 /16" = 1 '-0" y ENCROACHMENT ELEVATION - NORTH 09. 19.2016 W. MAGNOLIA AVE. 22 S.F. R.O.W. ENCROACHMENT (80' R.O.W.) FOR AWNING 41 S.F. R.O.W. ENCROACHMENT FOR AWNING AND ENTRY STAIR _ ° -- 1 38 S.F. DRAI AGE :EASEMENT I ENCROACH ENT OR AWNING ' 14 S.F. SDRA NAGS EASEMENT I I ENCROACH ENT OR AWNING ►- I 9 W I I 7 Lo o I uj v I I L J I ILIJ I 1 1 V) 23 0 W H N K Q W � W W 0 W 0 Y !Y W Q d Z a 0 1465 WEST MAGNOLIA 1 " = 20'-0" ENCROACHMENT SITE PLAN 12. 14.2016 V/ 41 S.F. R.O.W. ENCROACHMENT FOR AWNING ... 22 S.F. R.O.W. ENCROACHMENT FOR AWNING Pat 0.0OR 38 S.F. DRAINAGE EASEMENT ENCROACHMENT FOR AWNING 14 S.F. DRAINAGE EASEMENT ENCROACHMENT FOR AWNING 1465 WEST MAGNOLIA IP 6" = Y-0" (7"A ENCROACHMENT ELEVATION - WEST 09.19.2016 EXHIBIT `B" Certificate of Insurance 2015 Easement Encroachment Agreement-Commercial Page 12 of 12 1465 Magnolia Ave Rev.02/2015 AC40R � CERTIFICATE OF LIABILITY INSURANCEDATE.IMMIDDNYYY) ik.� I 12114/2016 THIS-CERTIFICATE IS.ISSUED.AS.A MATTER OF INFORMATION ONLYAND-CONFERS NO RIGHTS UPON THECERTIFICATEMOLDER.THIS. CERTIFICATE DOES NOTAFFIRMA71VELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE-COVERAGE AFFORDED BY THE POLICIES aELOw. THIS CERTIFICATE--t)F9NtURANCEDOES.NOTCONSRA .TITUTEACdNTCTSETWEENTHEISSUINO.INA SUR.ER(S), UTHO.RIZED REPRESENTATIVE OR:PRODUCER;AND THE-CERMF(CATE 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 ofthe 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 -NAME: MaryGUM The Parks Group,Inc. PHONE Ext): 817-608-0150 c No; 817-608-0152 WC.No.PO Box 1670 AADDARESS: Maryiftparksgroup.com INSURER(S)AFFORDING COVERAGE NAIC3 Arlington TX 76004 INSURERA: Evanston Insurance Company 35378 INSURED INSURER B z 1455 Magnolia, LLC- INSURERC; PO Box 1324 INSURER D a INSURER E: Arlington TX 76004 INSURERF: COVERAGES- CERTIFICATE-NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTVVITHSTAN[5]NGANY REQUIREMENT,TERMOR CONDITION OKANYCOIVTRACT OR OTHEk.D-OCUtMENT WffH riE$PECTTO'WHICH'TiitS CEI2TIF(CATE MAYBE ISSUEDOR-MAY-PERTA4N,THE INSORANCEAFFOR-bED SY-THE-POLICIES DESGf21BEDHEREIN IS SUBJECT TOALITHE-TERMs,- EXCLUSWNSa4ND-60NDITIONS OF.-SUCH POLICIES.LIMITS:SHOWN IMN(HAVE BEEN REDUCED BY PA1D CLAIMS: LICY EXP LTR TYPE OF INSURANCE POLICY NUMBER PM/DDMY PM/DD /YYYY LIMITS GENERAL LIABILITY EACH OCCURRENCE 1.000.000 E_ R TED x COMMERCIAL.GENERALLIABILITY PREMISES Eanccurrence 100,000 CL IMSMAbE F z7CCUR MED EXP An one Person' 5.;000 A Y 3AA1-33420 12/232016 12123/.2017 PERSONAL&. VINJURY 1,000,000 GENERALAG'GREGATE 2,000,000 GEN-L AG GREGATELIMIT.APPLIESPER: PRODUCTS.-.COMP/OPAGG $ 2000,000 X POLICY PRO- LOC $ AUTOMOBILE LIABILITY COM=INGLE LIMIT ANYAUTO 64DILY INJURY(Perpetson) $ ALTOk ED SCHEDULED. BODILY IN AJRY(Peracadent) $ .AUTOS AUTOS NON-OWNED PROPERTY.DAMAGE $ HIREDAU Q AUTOS eraooiderst UMBRELLA LIAB .00C-LIR EACH OCCURRENCE EXCESS LIAB CLAIMS-MADE AGGREGATE DEQ I I RETENTION $ WORKERS COMPENSATION WC:STATIJOTH- AND.EMPLOYERS'LIABILITY Y/N m- PRoPk&6RIPARTNEi7�ECUTIVE❑ EL.EACH ACCIDENT OFFICER/MEMBER.EXCLUDED? NIA. (Mandatory in NH) E.L.DISEASE-EA EMPLOYE IY�re,A6 b'buriddr DESCRIPTION OF:OPERATtONS below I E.L_DISEASE-POLICY-LIMIT DESCRIPTION OF OPERATIONS/LOCATIONS J VEHICLES,(AttechACORD 101,Addttional Remaft Schedule,Ir more space Is required) THE POLICY IS ENDORSED WITH FORM CG2012(05/09)ATTACHED. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE The.City of Fat Worth Department of Development TH5EXPI12ATiON DATE THEREOF.,NOTICEWILL BE'DELIVERSD IN Attn:.David Schroeder,Planner ACCORDANCE.WITk THE POLICY PROVISIONS. 1000 ThTOCkmOrtOn Street AUTHORIZ REPRESENTATIVE Fort Worth TX 76102. �+ ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD-25:(2010105) The ACORR name and logo are registered marks ofACORD POLICY NUMBER: 3AA123420 COMMERCIAL GENERAL LIABILITY CG 2012 05 09 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED STATE OR GOVERNMENTAL AGENCY OR SUBDIVISION OR POLITICAL SUBDIVISION PERMITS OR AUTHORIZATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE State Or Governmental Agency Or Subdivision Or Political Subdivision: THE CITY OF FORT WORTH DEPARTMENT OF DEVELOPMENT 1000 THROCKMORTON STREET FORT WORTH, TX 76102 Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II —Who Is An Insured is amended to in- 2. This insurance does not apply to: clude as an insured any state or governmental a. "Bodily injury" "property damage" or" personal agency or subdivision or political subdivision shown in and advertising injury"arising out of operations the Schedule, subject to the following provisions: performed for the federal government, state or 1. This insurance applies only with respect to opera- municipality; or tions performed by you or on your behalf for which b. "Bodily injury" or "property damage" included the state or governmental agency or subdivision or within the "products completed operations political subdivision has issued a permit or au- hazard". thorization. CG 2012 05 09 0 Insurance Services Office, Inc., 2008 Page 1 of 1 ❑