HomeMy WebLinkAboutContract 59371Date Received: 5/10/2023
Time Received: 4:12 p.m.
Record Number: PN23-00030
City Secretary No.: 59371
PUBLIC PROPERTY EASEMENT ENCROACHMENT LICENSE AGREEMENT
TIER II
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
Director of the Development Services Department, and FAB 5 Management, LLC, a(n)
Utah limited liability company ("Licensee"), acting by and through its duly authorized
Manager.
RECITALS
WHEREAS, Licensee is the owner of the real property located at 11229
Timberland Boulevard, Fort Worth, Texas 76244("Property"), as recorded in Deed
Records as Lot 1, Block C, White Rock Plaza, an addition to the City of Fort Worth,
Tarrant County, Texas, by Instrument Number D217187636, in Tarrant County,
Texas, and;
WHEREAS, the City owns a drainage facility easement (the "Public Property")
adjacent to the Property, recorded in the plat records of Tarrant County as plat number
FP-22-177; and
WHEREAS, Licensee desires to construct, place, and maintain certain
improvements which will encroach in, on, above, or below the Public Property; 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 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 Public Property as described in and at the location shown
on Exhibit "A," but only to the extent shown thereon, for the purpose of constructing,
installing, and maintaining a private storm drains (the "Encroachment"). Upon
completion of the Encroachment, Licensee agrees to be responsible for maintaining the
Tier II Easement Encroachment Agreement Page 1 of 1 l OFFICIAL RECORD
Revised 12/2022 CITY SECRETARY
FT. WORTH, TX
Encroachment within the Public Property. Licensee shall not expand or otherwise cause
the Encroachment to further infringe in or on the Public Property beyond what is
specifically described in Exhibit "A."
2.
All construction, installation, maintenance, and operation of the Encroachment
and the use or occupancy of the Public Property shall comply with and be performed in
strict compliance with this Agreement and with the charter, ordinances, codes, and
policies of the City. Prior to the construction or installation of the Encroachment,
Licensee shall submit all plans and specifications to the Director of the Development
Services Department or duly authorized representative. Licensee shall not commence
construction or installation of the Encroachment nor make any use of the Public Property
until after the execution of this Agreement.
0
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 and the use and occupancy of the Public Property, including the securing
the approval and consent of the appropriate utility companies and agencies of the State of
Texas 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 of
Public Property, Licensee shall pay to City an additional amount equal to such additional
cost as determined by the Director of Transportation and Public Works, the Director of
the Water Department, the Director of the Development Services Department, or their
duly authorized representative.
4.
Licensee agrees that City may enter and utilize the Public Property at any time for
any public purpose, including installing, repairing, replacing, or maintaining
improvements to its public facilities or utilities necessary for the health, safety, and
welfare of the public. The City shall have no responsibility or liability for any damages
related to the Encroachment resulting from the City's use of the Public Property;
however, the City shall 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 Public Property to a
condition acceptable to the Director of Transportation and Public Works, the Director of
Tier II Easement Encroachment Agreement Page 2 of 11
Revised 12/2022
the Water Department, the Director of the Development Services Department or their
duly authorized representative. Any such removal of the Encroachment shall be in
accordance with then -existing City regulations and policies. It is understood and agreed
to by Licensee that if this Agreement terminates and Licensee fails to remove the
Encroachment and restore the Public Property, Licensee hereby gives City permission to
remove the Encroachment and any supporting structures from the Public Property, to
restore the Public Property, and to 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 Encroachment and use of Public Property as provided for by this
Agreement, Licensee agrees to pay to City at the time this Agreement is requested an
application fee in the sum of Nine Hundred Dollars ($900.00).
7.
The term of this Agreement shall be for thirty (30) years, commencing on the
date this Agreement is executed by City. However, the City may terminate this
Agreement upon Licensee's noncompliance with any of the terms of this Agreement.
City shall notify Licensee in writing of any such noncompliance and if Licensee does not
cure the noncompliance within thirty (30) days of notice from City, the City may
terminate this Agreement. However, the City may, at its sole option, allow the Agreement
to remain in effect so long as Licensee has taken reasonable measures to cure the
noncompliance or is continuing to diligently attempt to remedy the noncompliance.
8.
It is further understood and agreed between the parties hereto that the Public
Property to be used and encroached upon is held by City as trustee for the public; that
City exercises such powers over the Public Property 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 Public Property 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 Public Property to be used for any other public purpose, 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 both the Encroachment and the public purpose.
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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 ALLEGED 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 is 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 "C."
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, 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 restoration of the Public Property. All insurance coverage
required herein shall include coverage of all Licensee's contractors and subcontractors.
Tier II Easement Encroachment Agreement Page 4 of 11
Revised 12/2022
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 the county in which the Encroachment is located. 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 use of the Public Property.
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 Public Property and is not a conveyance of any right, title, or interest in or to the
Public Property, 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.
16.
Tier H Easement Encroachment Agreement Page 5 of 11
Revised 12/2022
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 attorneys' fees.
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]
Tier H Easement Encroachment Agreement Page 6 of 11
Revised 12/2022
City:
CITY OF FORT WORTH
D.J. Harrell, Director of the
Development Services Department
Date: May 5, 2023
0o b
04 FORTIlL
a � Fooeoo eo IY�dO ATTEST: °
d�a o�d
a�a o=o
nnaoo ° p
Jannette Goodall,
City Secretary
Date: May 10, 2023
Licensee:
FAB 5 Management, LLC
a Utah limited 114'lity com
By:
Name: G eg Anderson
Title: Manager
Date: �''
Approved As To Form and Legality
�j t/4 n4kk
Jeremy Anato-Mensah
Assistant City Attorney
Date: May 2, 2023
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.
Rehaecca4NaneQwen (May 2. 2023 17.40 CDT)
Rebecca Owen
Development Services
Date: May 2, 2023
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Tier II Easement Encroachment Agreement Page 7 of l I
Revised 12/2022
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 D.J. Harrell, 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 loth day of
May 32023 .
WendLDigitally signed by
Y� Wendy L. Beardslee
Beardslee Date:2023.05.10
15:30:09-05'00'
Notary Public in and for the State of Texas
After recording return to:
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
Tier II Easement Encroachment Agreement
O�Q�tYPCWENDY L BEARDSLEE
z Notary Public
* * STATE OF TEXAS
Notary I.D. 13323719-3
�9rFOF My Comm. Exp. July 28, 2025
Page 8 of 11
Revised 12/2022
STATE OF
COUNTY OF §
L",
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
on this day personally appeared Greg Anderson, Manager (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 FAB 5 Management, LLC, a Utah limited
liability company (entity type), and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this d day of � /- 'L �j 7" �/I%
20
1�� L111-
No ry Public in and for the
State of _
apt�V P(g4c ANUE COX
*NOTARY PUBLIC STATE OF TEXAS
MY COMM. EXP. 02/18/2025
N NOTARY ID 1072998-2
9jr o�
Tier H Easement Encroachment Agreement Page 9 of 11
Revised 12/2022
EXHIBIT A
Depiction and description of the Encroachment
Tier II Easement Encroachment Agreement Page 10 of 1 I
Revised 12/2022
EXHIBIT "A"
0.003 ACRE
ENCROACHMENT AGREEMENT
BEING 0.003 OF AN ACRE OF LAND SITUATED IN THE J. M. LILLY SURVEY, ABSTRACT NO.
979, CITY OF FORT WORTH, TARRANT COUNTY, TEXAS, AND BEING A PORTION OF A
TRACT OF LAND DESCRIBED TO FAB 5 MANAGEMENT, LLC BY DEED RECORDED IN
COUNTY CLERK'S FILE NO. D217187636, OFFICIAL PUBLIC RECORDS, TARRANT
COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED BY METES AND
BOUNDS AS FOLLOWS:
BEGINNING AT A POINT WITHIN SAID FAB 5 MANAGEMENT TRACT, FROM WHICH A 112-
INCH IRON ROD FOUND FOR THE SOUTHERNMOST SOUTHWEST CORNER OF SAME
TRACT ON THE NORTH RIGHT-OF-WAY LINE OF TIMBERLAND BOULEVARD (A VARIABLE
WIDTH RIGHT-OF-WAY) BEARS SOUTH 62°35'08" WEST, 526.65 FEET;
THENCE OVER AND ACROSS SAID FAB 5 MANAGEMENT TRACT, THE FOLLOWING
COURSES AND DISTANCES:
NORTH 00020'39" WEST, A DISTANCE OF 10.00 FEET;
NORTH 89039'21" EAST, A DISTANCE OF 12.50 FEET;
SOUTH 00020'39" EAST, A DISTANCE OF 10.00 FEET;
SOUTH 89039'21" WEST, A DISTANCE OF 12.50 FEET TO THE POINT OF BEGINNING
AND CONTAINING A CALCULATED AREA OF 0.003 ACRES (125 SQ. FEET) OF LAND.
Aaron C Bwwrf, R.P.L.S.
Registered Professional Land Surveyor
Texas Registration No. 6702
LJA Surveying, Inc.
3017 West 7t' Street, Suite 300
Fort Worth, Texas 76107 '
682-747-0800
TBPELS Firm No. 10194382
Page 1 of 2
............... 0......... 4.•
AARON C. BROWN
1.i6......................se....
6702
' "' S
February 22, 2023
CONC MON
(TxDOT)
(CM)
LINE
BEARING_
DISTANCE
L1
N00'20'39"W
10.00'
L2
N89-39121"E
12.50'
L3
S00020'39"E
10.00,
L4
S89'39'21"W
12.50'
3 ACRES
��'y Ile \( 250SO. FEET)
ni \
POINT OF '\ \\
BEGINNING \` 23 ` 1l
3Q i
=o
2 L i
Q FAB 5 MANAGEMENT, LLC
CC# D217187636 85'
O.P.R.T.C.T.
r`
2 / g;t
5
i
5/8"CIRS i
"WA SURVEYING"
i
i
i
1 /2"IRF
(CM) TIMBERLAND BOULEVARD
(VARIABLE WIDTH R.O.W.)
APPROXIMATE SURVEY LINE
WM MCSOWE No SURVEY
AB 9
COUNTY CLERK'S FILE NO.
IRON ROD FOUND
CONTROLLING MONUMENT
T.C.T. OFFICIAL PUBLIC RECORDS, TARRANT COUNTY, TEXAS
RIZONTAL DATUM:
IE BEARING BASIS IS GRID NORTH, TEXAS STATE PLANE COORDINATE SYSTEM, NORTH CENTRAL ZONE, NAD83
AD83 (2011) EPOCH ZWO), AS DETERMINED BY GPS OBSERVATIONS. ALL DISTANCES SHOWN HEREON ARE
IE RESULT OF THE APPLICATION OF A COMBINED SCALE FACTOR OF 1.00012 FROM THE ORIGIN (0,0).
[DATE: 02/22/2023 EXHIBIT IIAII
PAGE Z RWN BY: S.A.T. 0.003 ACRE ENCROACHMENT AGREEMENT
KDBY: A.C.B. SITUATED IN THE
OF 2 J.M. LILLY SURVEY, ABSTRACT NO.979
O1 NO. 0121 CITY OF FORT WORTH, TARRANT COUNTY, TEXAS
100 0 100
1 INCH = 100 FT.
WA Surveying, Inc. ZA
3017 West 7th Street Phone 682.747.0800
Suite 300
Fort Worth, Texas 76107 T.B.P.E.L.S. Finn No.10194382
4'X4' WYE INLET
(W-2285)
STA. 0+00.00 LINE "ST 1"
CONNECT TO EXISTING 4' X 4' WYE INLET
TOP=787.86
FL 8"=7R. RR
LINE ST-1
PROPOSED 2.5' LF OF 8" PVC
STORM LINE
STA. 0+06.34 LINE "ST 1"
INSTALL 2' X 2' AREA INLET
TOP=787.47
FL 8"=783.97
15' SANITARY SEWER ESMT.
C.C.#D223021037
O.P.R.T.C.T.
15" CL. III RCP
DIMENSION
Leo"
G R 0v
loins omu RQdb;pAllA$TEXAS 7S228
EXHIBIT C
III
I
k
I it
I
GRAPHIC SCALE
2° 0 ,0 20
I
t INCH = 20 FEET
II
I
10' DRAINAGE ESMT.
EXISTING 24" RCP
G.C.#D223021093
STORM LINE
(W-2285
O.P.R.T.C.T.
EXISTING
24" RCP
EXISTING 21" RCP
STORM LINE
STORM LATERAL
(W-2285
(W-2285
I
13 III �
' TA. 0+00.00 LINE "ST
I.. _ ONNECT TO EXISTING 4' X
It- WYE INLET
-� TOP=787.86
FL 15"=782.86
LINE ST-2
PROPOSED 2.5' LF OF 15"
RCP STORM LINE
STA. 0+18.72 LINE "ST 2'
INSTALL 45 DEGREE BEND
FL 15"=783.07
EXHIBIT C SITE PLAN
LOT 1, BLOCK C
WHITE ROCK PLAZA ADDITION
EXHIBIT B
Certificate of Insurance
Tier H Easement Encroachment Agreement Page 11 of 11
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