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HomeMy WebLinkAboutContract 52623 CITY SECRETARY CONTRACT NO. J5 a(o a 3 DECEIVED EASEMENT ENCROACHMENT LICENSE AGREEMENT AUG -7 2019 Commercial CITY OF FORT WORTH C17YSECRLTARY 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 Planning and Development Director, and ABRES III, LTD., a Texas limited partnership ("Licensee"), owner of the real property located at East of Haltom Road, North of 820 in Haltom City, Fort Worth, Texas 76137("Property"), acting by and through its duly authorized General Partner. 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, attached as "Exhibit C" and incorporated herein for all purposes; and WHEREAS, the City has a sanitary sewer easement recorded as Volume 7283, page 1,797, Deed Records, Tarrant County, Texas (the "Easement") in the Property as shown on the map attached to this Agreement as "Exhibit A," which is incorporated herein for all purposes; and WHEREAS, Licensee desires to construct, place, and/or maintain certain improvements which will encroach in, on, above, or below the City's Easement; 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 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 in, on, above, or below and occupy a portion of the City's Easement as described in and at the location shown on Exhibit A, but only to the extent shown thereon, for the purpose of installing a retaining wall and private drive, and raising the grade of a portion of the soil above the existing sanitary sewer line (the "Encroachment"). Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining the Encroachment within the Easement. Licensee shall not expand or otherwise cause the Encroachment to OFFICIAL RECORD Easement Encroachment Agreement-Commercial FT. WORTH,T further infringe in or on City's Easement beyond what is specifically described in the exhibit(s) attached hereto. 2. All construction, maintenance, or operation in connection with such Encroachment, use, and occupancy shall comply and be performed in strict compliance with this Agreement and with the Charter, Ordinances, and Codes of the City, and in accordance with the directions of the Director of the Transportation and Public Works Department or the Director of the Water Department, or their duly authorized representative. Prior to the date hereof, Licensee has submitted plans and specifications to the applicable Director or duly authorized representative, which have been approved by the City. Licensee shall not commence construction of the Encroachment until such approval shall be indicated in writing by the applicable Director or authorized representative. However, such approval shall not relieve Licensee of responsibility and liability for concept, design, and computation in the preparation of such plans and specifications. 3. Licensee, at no expense to the City, shall make proper provisions for the relocation and installation of any existing or future sanitary sewer lines affected by such Encroachment use and occupancy, including securing the approval and consent to the extent required of the appropriate utility companies and agencies of the State and its political subdivisions. In the event that any installation, reinstallation, relocation, or repair of any existing or future sanitary sewer lines 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, Licensee shall pay to the 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 their duly authorized representative. The City shall endeavor to provide advance notice to Licensee of any planned installation, reinstallation, relocation, or repair of any existing or future sanitary sewer line and to reasonably cooperate with Licensee in identifying alternative methods of performing any of the foregoing in a manner least impactful on the Encroachment and at the least cost to Licensee. 4. Licensee agrees that the City may enter and utilize the referenced areas at any time for the purpose of installing, repairing, replacing, or maintaining improvements to its sanitary sewer line necessary for the health, safety, and welfare of the public, or for any other public purpose. The City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Encroachment installed by Licensee, but the City will make reasonable efforts to minimize such damage. Easement Encroachment Agreement-Commercial Page 2 of 13 Revised 12/2018 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 Easement to a condition acceptable to the Director of Transportation and Public Works or the Director of the Water Department, or their duly authorized representative, 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 Encroachment as directed and restore the Easement, Licensee hereby gives the City permission to remove the Encroachment and any supporting structures and 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 encroachments and uses provided for by this Agreement, Licensee agrees to pay to City at the time this Agreement is requested an application fee of in the sum of Five Hundred Dollars ($500.00). 7. The term of this Agreement shall be for thirty (30) years, commencing on the date this Agreement is executed by the City; provided, however, upon such expiration if Licensee so requests City agrees to negotiate in good faith on a new agreement on substantially the same terms and conditions. However, this Agreement may be terminated upon Licensee's noncompliance with any of the terms of this Agreement. City shall notify Licensee in writing of any noncompliance and if not cured within ninety (90) days, this Agreement shall be deemed terminated, unless such noncompliance is not susceptible to cure within ninety (90) days, in which case this Agreement shall be deemed terminated in the event that Licensee fails to commence and take such reasonable steps as are necessary to remedy the noncompliance within ninety (90) days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with continuity to remedy same. 8. It is further understood and agreed between the parties hereto that the Easement to be used and encroached upon 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 Easement Encroachment Agreement-Commercial Page 3 of 13 Revised 12/2018 Property, consistent with the terms of the recorded easement whether presently contemplated or not, that the parties agree to negotiate in good faith in order to accommodate 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 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 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 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 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 to submit a similar Easement Encroachment Agreement-Commercial Page 4 of 13 Revised 12/2018 Certificate of Insurance annually to the City on the anniversary date of the execution of this Agreement. 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 the cleaning and restoration of the Easement. 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 Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth. 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 uses. 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 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 Easement Encroachment Agreement-Commercial Page 5 of 13 Revised 12/2018 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, the 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. Except as contemplated by the following sentence, 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 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. 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. 20. This Agreement shall be binding upon the parties hereto and their successors and assigns. 21. This Agreement may be executed in multiple counterparts, each of which shall be considered an original,but all of which shall constitute one instrument. Easement Encroachment Agreement-Commercial Page 6 of 13 Revised 12/2018 [SIGNATURES APPEAR ON FOLLOWING PAGE] Easement Encroachment Agreement-Commercial Page 7 of 13 Revised 12/2018 City: Licensee: CITY OF FORT WORTH ABRES III, LTD. By: ABRES III GP, LLC, its General Partner By: By: Randle Harwood, Director Name: Stephen N. Barnes Plannin & Development Title: Manner er Date: 7 v Date: �8F4 � ` 4 �L0. ATTEST: pproved As To Form and Legality * �r City Sec Vary Trey Qualls 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 repo ing requirements. Janie S. Morales Development Manager OFFICIAL RECORD CITY SECRETARY FT. WORTH,TX Easement Encroachment Agreement-Commercial Page 8 of 13 Revised 12/2018 PAGE FOR CITY OF FORT1 ' OFFICE USE 1 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 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 3 day of 20 �9 Notary Public n and for the State of Texas ,rrr„ ,��tiPpVPVA�,� JENNIFER LOUISE E2ERNACK Notary Public,State of Texas = ° Comm.Expires 03-01.2020 After recording return to: Notary ID 130561630 Planning & Development Development Coordination Office 200 Texas Street Fort Worth, Texas 76102 OFFICIAL RECORD CITYSECRETARY Easement Encroachment Agreement-Commercial FT*QRTHe T STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of /L� C on this day personally appeared Stephen N. Barnes, Manager of the General Partner (Title) 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 ABRES III, LTD., a Texas limited partnership (entity type), and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this lXday o 20 MARCIA B RANSTETTER >y :r MY Notary ID#12271034 •'�,;,;,;;+'in and for th �,;,;,;;+' Expires March 12,2021 ''•••°f`��' State of L RECORD RETARYRTH, TX Easement Encroachment Agreement-Commercial Page 10 of 13 Revised 12/2018 EXHIBIT A Map of Easement and Encroachment Easement Encroachment Agreement-Commercial Page 11 of 13 Revised 12/2018 CL y >$ �� zzOWWW ai'fia J=ti u � � J NO / a�CaIII �IIiu NaI' .'aiLa TP- - �' q l I �I tl !y. 9 i•f i m{ t I of Pip- it [ / C I� �t i ♦ �K" € k� �ac b•�'. Y t1= �I`YQ��O a�nbq$hpl4Ngs� S h !Q�a a3$ e eG T i s 3 C fli h!' is �� EXHIBIT B Certificate of Insurance Easement Encroachment Agreement-Commercial Page 12 of 13 Revised 12/2018 EXHIBIT C Metes and Bounds Legal Description of the Property Easement Encroachment Agreement-Commercial Page 13 of 13 Revised 12/2018 F m g a a t;z<z J s nig, � r Q ac: B 0ih cn N7y N :�a ele Ka GI.F zNY cn z U cc p � d gait .9ezzr Al 4 m� ` 0 B N g ¢! 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