HomeMy WebLinkAboutContract 53036 C+TY SECR iAFY
CONTRACT NO.. 5303(o
EASEMENT ENCROACHMENT LICENSE AGREEMENT
G G�� 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, Assistant City Manager, or
Planning and Development Director, and Mistletoe Station, LLC, a Texas limited
liability company ("Licensee"), owner of the real property located at 1916 Mistletoe
Blvd, Fort Worth, Texas 76104 ("Property"), acting by and through its duly authorized
Member.
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 utility easement (the "Easement") in a portion of 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 building canopy and
stairs (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 further infringe in or on City's Easement
beyond what is specifically described in the exhibit(s)attached hereto.
OFFICIAL RECORD
CITY SECRETARY
Easement Encroachment Agreement-Commercial FT P > 'p=TIC
12/2018
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
construction of the Encroachment,Licensee shall submit all plans and specifications to the
applicable Director or duly authorized representative. 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 utilities affected by such Encroachment, including
securing the approval and consent 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 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,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.
4.
Licensee agrees that the City may enter and utilize the referenced areas upon which
the Encroachment is located 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. 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.
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 area to
substantially its condition immediately prior to the Encroachment 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
Easement Encroachment Agreement-Commercial Page 2 of 12
Revised
12/2018
costs expended by the City in taking such actions, if Licensee fails to do so within 60
days following termination.
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. 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 thirty (30) days, this
Agreement shall be deemed terminated, unless such noncompliance is not susceptible to
cure within thirty (30) 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 thirty (30) 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
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;
provided,however, nothing in this Section 8 shall permit the City to use the Easement area
for a purpose not expressly provided in the instrument creating the Easement.
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
Easement Encroachment Agreement-Commercial Page 3 of 12
Revised
12/2018
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, EXCEPT THAT THE INDEMNITY PROVIDED FOR
IN THIS SECTION SHALL NOT APPLY TO ANY LIABILITY RESULTING
SOLELY FROM THE NEGLIGENCE OF THE CITY OR ITS 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, EXCEPT AS EXPRESSLY
SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, 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 promptly
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 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.
Easement Encroachment Agreement-Commercial Page 4 of 12
Revised
12/2018
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 have
an interest. Licensee agrees that it will obtain all necessary permissions from any third
parties, if applicable,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 on any final judgment in favor of the
City and the City's reasonable attorneys' fees if City is the prevailing party in any such
action.
Easement Encroachment Agreement-Commercial Page 5 of 12
Revised
12/2018
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
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.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Easement Encroachment Agreement-Commercial Page 6 of 12
Revised
12/2018
City: Licensee:
CITY OF FORT WORTH MISTLETOE STATION,LLC
By: Saigebrook Mistletoe,LLC,
its Managing Member
By: By: ltwj�
Randle Harwood, Director Name: Lisa Stephens
Planning&De lop pent Title: President
Date: l fel. Date:_ �0 -� -[
i®F Fore, ,
ATTEST: F Approved As To Form and Legality
XAS
City Se e ry T fccTrey 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 reporting requi ments.
Janie S.Morales
Development Manager
U F1COAL RECORD
CiTY SEC��FTARY
FT. WORTH, TX
Easement Encroachment Agreement-Commercial Page 7 of 12
Revised
12/2018
***THIS PAGE FOR CITY OF FOIZT WORTI1 OFFICE I[ISE ONLY*--':*
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 P day of
201
`���1ppYP�ei�� JENNIFER LOUISE EZERNACK
'4ublic i for th to of Texas -'2°' =_Notary Public,State of Texas
Comm.Expires 03-01-2020
a,M 0 Notary ID 130561630
After recording return to:
Planning & Development
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
Easement Encroachment Agreement-Commercial Page 8 of 12
Revised
12/2018
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
�, on this day personally appeared Lisa Stephens, President of Saigebrook
Mistletoe, LLC, a Texas limited liability company, the Managing Member of Mistletoe
Station, LLC, 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 Mistletoe Station, LLC, a Texas
limited liability company,and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
20 .
94PkEOF16*111
KATHERINE E JOHNSON
Notary ID # 13062�6??
Notary Public in and for the My Commission E�: ues
March 29, 2020
State ofTV1(&5 �.
MICRA�._ RECORD
My SECRETARY
FB4. 9IF5�H6r TX
Easement Encroachment Agreement-Commercial Page 9 of 12
Revised
12/2018
EXHIBIT A
Map of Easement and Encroachment
Easement Encroachment Agreement-Commercial Page 10 of 12
Revised
12/2018
{ { - LL
LL �k
{ { d = J
{ 1 s
OEM
{ 1 / ■■■
,i
I
/ � I
0d U
I
\ \ I
\ 4Sn1LJ 1 65.4' I
t
I
a 9
_ 1
I Y
J
Al
Q I
---- —26.6'— 65.9' w
{ tt \\ z F l£'LSZij 1 0
w 1{NS3 -7l1
y_ IIIIII 111111 � - T
Z
I
Z
1 z
LL
'GA-le 3013liSIVI
—
I
I
■
I
H
NEI MEN 11
Jim, 111
�.lw
.._l1 • i Riii� �
In-
SIN i�i�il
���' C\��\7/7 -■■N■■■■■■■ 1 ^riTdiu'TiZL'r _
,CY"_-" '..�r _ -• � ••� • it 11 —
t = 1 . '
1 `
J
`3-
,
1 _ _
t�E Y
d i
Y
F! ill
.•1 '1 Will3 IIIIIIII .] IIIIIIII ] =■
�al=ii=l�., -,� all ell T 3tit�ii; IIII1111111111 1111111111111 IIIIIIIIIIIIY
i a•illiffiffiff!!I'll:
Rai' ! 1111111 IIIIIIIII- =■
Nal; i�i} (IIIIIIIIIIIII 1111111111111 1111111111111
P I�!},;,e,,,d,;g�� ����, �adp,,yv�,gggqq�, �aaaaa5� 1•i fa ___._ _. __
;•=-•-i t'-�■ illlllll- IIIIIIII- '��
a•ii! I�'j a1R-! �� -�
3a I
33i'' lii'I- IIIIIIIIIIIII IIIIIIIIIIIIY It
I'
(IIIIIIIIIIIII
_
t,ttiiaat�lll i. ,,, �I .., i�i3s�l-� 5 nay ryan 5ti..,�
��,i,ii3 1� '�:a'•(IIIIIIIII IIIIIIII
nay �. a3
'E�itilEli. � � � v -ai��1111111111 °IIIIIIII -� v
pia,i,iaa IMINNulilli
�■1 .■1 !. .I
�I{st li"s;I_ —1 = I!t}1 1111111111 JIIIIIII IIIIIIIII i ^
ai,ta=Ii,�Ai—� mis "1� � Is=;;IIIIIIIIV I IIIIIII� IIIIIIIII ','.II� "
�Itst,ie�l! Isi!!i I��f'
3 i ffl: 11�I�
I�s alias _��� -��� �■I i�; _ v"
:I IIIIIIII■ IIIIIIII IIIIII
i
;t3.t limp
N�■ �� it!t!
u p,llh.■ it k��I�������—II_IIIIIIII I�I�Ill—
NN NNNN _.■ III■■ I.■ {�Will
�i3}��'�I'�III *'II'llll
II� IIIII ���� I• I•I� a iisill_� ..
.� 4, l a�e•
ee�� eeee.t• �=J v i!3•
fill
;ill! I s IIIIIIII1 1IIIIII
� j_ at IIIIIIIPIIIfI Innnml I � ••" �'
'� .� 1st III 1'IIrC■ -.�I— I ,�
a'IO�iw-II`n,�allr � I�v
/ 11
•
■
■II �
� III���„lllllr l
1 .II
I t �� ■
• I'
NoliVis 3013 isIN
Z Orr
cr-
mo
, J
■ o ii • , ,'
a �� � '� • • • • • • • • i11�
RN
�I • �� _ `��.i l� \ q III ,='
EXHIBIT B
Certificate of Insurance
Easement Encroachment Agreement-Commercial Page 11 of 12
Revised
12/2018
EXHIBIT C
Metes and Bounds Legal Description of the Property
Easement Encroachment Agreement-Commercial Page 12 of 12
Revised
12/2018
_vvcZ�� €r�=F—• Exhibit C
i n -
- ----- N MISTLETOE BLVD.
z
z
C)
N 10 UT1L. ESMT. m \
o I D212125731 00 \ \ I I
D I .6,99 �—
r
� I
Z3 1000
I .Y'S9
I / \
-uC)
<o
I
� n
mommom
/
mom