HomeMy WebLinkAboutContract 40487 CITY SECRETARY
CONTRACT NO. 4
STATE OF TEXAS §
COUNTY OF TARRANT §
CITY OF FORT WORTH
WATER LINE EASEMENT
DATE: June 4, 2010
GRANTOR: CEMEX CONSTRUCTION MATERIALS SOUTH, LLC
GRANTOR'S MAILING ADDRESS (including County):
Cemex Construction Materials South, LLC
920 Memorial City Way, Suite 100
Houston, Harris County, Texas 77024
GRANTEE: CITY OF FORT WORTH
GRANTEE'S MAILING ADDRESS (including County):
1000 Throckmorton Street
Fort Worth, Tarrant County, Texas 76102
Grantee has requested that Grantor grant a nonexclusive Easement to Grantee for the
express limited purpose of construction, operation, maintenance and repair of a water
pipeline, as defined hereinbelow. Grantor is willing to grant this nonexclusive Easement
to Grantee on the terms and conditions set forth herein.
PROPERTY:
1. Grantor, for the consideration paid to Grantor and other good and valuable
consideration, hereby grants, sells, and conveys to Grantee, its successors and
assigns, a non-exclusive easement, subject to all rights, interests and estates of third
parties, including, without limitation, any leases, licenses, easements, liens, or other
encumbrances, for the construction, operation, maintenance, replacement, upgrade,
and repair of one (1) pipe line(s), sixteen (16) inches in diameter inside a thirty (30)
inch steel casing„ hereafter referred to as "Pipeline." Such Pipeline shall be
constructed on the property ("Property"), as attached hereto as Exhibit A and shall be
constructed and placed as set forth on the map attached hereto as Exhibit B. Grantee
shall bury its Pipeline at a depth of no less than seven (7) feet below the surface. Any
additional construction, or any alterations or expansions of such Easement shall require
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the additional express written consent of Grantor. Grantee's rights are accepted subject
to any existing liens, rights-of-way, easement agreements, public highways and roads
and subject to the holders, if any, of any outstanding mineral or royalty estates.
2. Grantee shall use the Property solely for construction, operation within the
Property, and maintenance of a Pipeline. Grantee shall not use the Pipeline to carry
any other commodity or use the Property for any other purpose.
(a) Grantee represents and covenants that all of its operations on and in
connection with this easement right-of-way will be conducted in compliance with all
applicable laws. Grantee shall notify Grantor, in writing, promptly upon Grantee's
having received notice or otherwise learning of any claim, demand, action, event,
condition, report or investigation indicating any potential or actual liability arising in
connection with: (i) the noncompliance with or violation by Grantee or its employees or
contractors or subcontractors of the requirements of an law in connection with or
affecting the premises, and (ii) the release or threatened release by Grantee or its
employees or contractors and subcontractors of any toxic or hazardous waste,
substance or constituent or other substance onto or affecting the premises.
Grantee shall not, except in compliance with relevant laws and regulations: (i) cause or
permit any hazardous material to be placed, held, located, or disposed of on, under or
along the easement right-of-way, or (ii) permit any of the premises to ever be used
(whether permanent or temporary) for any hazardous material. Grantee shall take all
reasonable steps to clean-up, remove, resolve or minimize the impact of, or otherwise
deal with, any discharge or environmental complaint upon receipt of any notice thereof.
If Grantee should fail to perform such responsibility, Grantor may do so and all costs
and expenses incurred by Grantor and its representatives in the exercise of such rights,
remedies, powers and privileges under this easement, common law or statutory law
shall be fully reimbursed to Grantor by Grantee.
3. Grantee expressly agrees and accepts the condition of the Easement in its
present condition, "AS IS, WHERE IS". Grantee has relied solely upon its own
judgment regarding the condition of the Easement, and hereby affirms that, as of the
date of this Agreement, the Easement is of the condition, function, character, capacity,
and suitability as desired by Grantee for its use. GRANTOR MAKES NO
GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE
WHATSOEVER, INCLUDING IMPLIED WARRANTIES OF FITNESS OR
SUITABILITY FOR ANY PARTICULAR PURPOSE.
4. Should Grantee permanently abandon the use of the Easement herein granted
for a period of two or more months, its rights hereunder will automatically terminate and
revert absolutely to Grantor, its successors or assigns; and in the event of such
abandonment or reversion, Grantee shall be obligated to execute and deliver to
Grantor, its successors or assigns, a formal release of all rights hereunder. Grantor
may terminate this Easement immediately in writing upon the default of any of Grantee's
obligations hereunder.
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5. Grantee Obligations. Grantee shall perform the following obligations (each of
which shall survive termination of this Easement) or be declared in default of this
Easement:
(a) Grantee agrees to restore the Easement to a good, smooth, level condition with
the soil so graded that the plant life growing thereon shall be able to re-establish itself
thereon. Grantee further agrees to re-establish native grass or the equivalent on the
Easement.
(b) As further consideration to Grantor for granting this Easement, to the extent
allowed by law, Grantee hereby agrees to hold harmless and indemnify Grantor and its
directors, officers, shareholders, employees and agents against all claims, costs,
damages and expenses of any nature whatsoever arising or growing out of any act,
occurrence or condition in, on or about the Easement property and adjacent premises
impacted by the activities of Grantee or its employees or agents, and/or caused or
claimed to be caused by the acts, omissions, negligence or misconduct of Grantee, its
agents, servants or employees. Grantee agrees to pay for any damage caused by its
activities, including but not limited to property damage and personal injury (including
death). Grantee shall in addition pay any legal or investigation costs incurred by
Grantor in enforcing its rights under this indemnity.
(c) Grantee agrees to give forty-eight (48) hours prior notice to Grantor of the date
upon which it expects to (a) enter on the Easement property or (b) conduct any
construction or repair activities related to the Easement.
(d) Grantee agrees to promptly repair all washouts and erosion caused in the
exercise of its rights herein granted and to protect all areas in which the topsoil is
disturbed by Grantee's activities, including reseeding.
(e) Grantee shall exercise the rights granted hereunder in such a manner as to
minimize possible damage and harm to the Grantor's property, including but not limited
to the surface of the land.
(f) Grantee shall complete any authorized construction and repair activities on the
Easement in a lien-free manner and shall promptly remove any lien placed upon
Grantor's property within five (5) days after request by Grantor.
(g) Grantee shall conduct all of its operations, and shall ensure that the operations of
any agent are conducted, in full compliance with all relevant federal, state and local
laws and regulations. Grantee shall indemnify Grantor fully against any costs or claims
attributable with Grantee's failure to do so.
6. Environmental Matters.
(a) The Parties agree to the following definitions for the purpose of this Easement:
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"Environmental Complaint" means any complaint, order, citation or notice with regard to
air emissions, water discharges, noise emissions or any other environmental, health or
safety rules or regulations affecting Grantee or any of the property impacted by this
Easement.
"Environmental Condition" means (i) the introduction into the environment of any
pollution, including without limitation any contaminant, irritant, or pollutant or other toxic
hazardous substance (whether such pollution constituted at the time thereof a violation
of any law), as a result of any spill, discharge, leak, emission, escape, injection,
dumping or release of any kind whatsoever of any substance or exposure of any type in
any work places or to any medium, including without limitation air, land, surface waters
or ground water, or from any generation, transportation, treatment, discharge, storage
or disposal of waste materials, raw materials, hazardous materials, toxic materials, or
products of any kind or from the storage, use or handling of any hazardous or toxic
materials or other substances, as a result of which Grantee or the premises may suffer
to be subject to any Lien, or (ii) any non-compliance with or violation of any
"Environmental Law" as a result of or in connection with any of the foregoing.
"Environmental Law" means (i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C.A. §9601 et seq., (ii) The Resource
Conservation and Recovery Act, as amended by the Hazardous and Solid Waste
Amendment of 1984, 42 U.S.C.A. §6901 et seq., (iii) the Clean Air Act, 42 U.S.C.A.
§7401 et seq. (iv) the Clean Water Act of 1977, U.S.C.A. §1251 et seq., (v) the Toxic
Substances Control Act, 15 U.S.C.A. §2601 et seq., and (iv) all other Laws relating to
air pollution, water pollution, noise control and/or the handling, discharge, disposal or
recovery of on-site or off-site hazardous substances or materials, as each of the
foregoing has been or may hereafter be amended from time to time.
"Environmental Liability" means any claim, demand, obligation, cause of action,
accusation, allegation, order, violation, damage, injury, judgment, penalty or fine, cost of
enforcement, cost of remedial action or any other cost of expense whatsoever, including
reasonable attorney's fees and disbursements, resulting from the violation or alleged
violation of any Environmental Law or the imposition of any Environmental Lien.
"Environmental Lien" means a Lien in favor of a Tribunal or other person (i) for any
liability under an Environmental Law or (ii) for damages arising from or costs incurred by
such Tribunal or other persons in response to a release or threatened release of
hazardous or toxic waste, substance, or constituent, or other substances, into the
environment.
"Hazardous Discharge" means the happening of any event involving the use, storage,
spill, discharge or cleanup of any Hazardous Material.
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"Hazardous Material" means hazardous, toxic or dangerous waste, substance or
material defined as such in any Environmental Laws.
"Person" shall mean any individual, corporation, joint venture, general or limited
partnership, trust, organization, association, other entity or Tribunal.
"Tribunal" shall mean any government, any arbitration panel, any court or any
governmental department, commission, board, bureau, agency or instrumentality of the
United States of America or any state, province, commonwealth, nation, territory,
possession, county, parish, town, township, village or municipality, whether now or
hereafter constituted and/or existing.
"Laws" shall mean all applicable statutes, laws, ordinances, regulations, orders,
judgments, writs, injunctions or decrees of any state, commonwealth, nation, territory,
possession, province, county, parish, town, township, village, municipality or Tribunal.
"Lien" shall mean any lien, mortgage, security interest, tax lien, pledge, encumbrance,
conditional sale or title retention arrangement, or any other interest in property designed
to secure the repayment of a liability, whether arising by agreement or under any law, or
otherwise.
(b) Notice. Grantee shall notify Grantor, in writing, promptly upon Grantee's having
received notice or otherwise learning of any claim, demand, action, event, condition,
report or investigation indicating any potential or actual liability arising in connection
with: (i) the noncompliance with or violation by Grantee or its employees or
contractors/subcontractors of the requirements of an Environmental Law in connection
with or affecting the premises, (ii) the release or threatened release by Grantee or its
employees or contractors/subcontractors of any toxic or hazardous waste, substance or
constituent or other substance onto or affecting the premises or which release Grantee
would have a duty to report to a Tribunal under an Environmental Law, or (iii) the
existence of any Environmental Lien on any of the premises. Grantee shall immediately
deliver a copy of any such notice to Grantor.
(c) Grantee Obligations. All obligations hereunder shall survive the termination of
this Agreement. Grantee shall not, except in compliance with relevant Environmental
Laws, (i) cause or permit any Hazardous Material to be placed, held, located, or
disposed of on, under or along the Easement right-of-way, or (ii) permit any of the
premises to ever be used (whether permanent or temporary) for any Hazardous
Material. Grantee shall take all reasonable steps to clean-up, remove, resolve or
minimize the impact of, or otherwise deal with, any Hazardous Discharge or
Environmental Complaint upon receipt of any notice from any Tribunal, including,
without limitation, the Environmental Protection Agency or any state or local agency, or
other person, asserting the existence of any Hazardous Discharge or Environmental
Complaint on or pertaining to the premises which, if true, could result in Environmental
Liability against Grantor, Grantee or otherwise. If Grantee should fail to perform such
responsibility, Grantor may do so and all costs and expenses incurred by Grantor and
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its representatives in the exercise of such rights, remedies, powers and privileges under
this Easement, common law or statutory law shall be fully reimbursed to Grantor by
Grantee. Grantee represents and covenants that all of its operations on and in
connection with this Easement will be conducted in compliance with all applicable Laws,
including without limitation, all Environmental Laws. Grantee shall act with all
reasonable promptness to identify, manage, and remove or treat all Environmental
Conditions resulting from the operations of Grantee which in any way impact or affect
the premises. If any Environmental Condition resulting from the operations of Grantee
is identified or treated to prevent its release into the environment, Grantee shall provide
Grantor with a written statement from an independent qualified engineer identifying the
location of the identified or treated Environmental Condition and certifying that such
Environmental Condition has been adequately treated to prevent its release into the
environment, and shall institute a periodic surveillance program (at least once each
year) to verify that such Environmental Condition continues to be adequately treated,
with such verification to be given to Grantor in writing after each such inspection.
(d) Grantee Environmental Indemnity. Without limiting any of Grantor's other rights,
remedies, powers and privileges at law or in equity, to the fullest extent permitted by the
laws of the State of Texas, Grantee shall indemnify and hold harmless Grantor and its
employees, agents, representatives, successors and assigns (collectively, the
"Indemnified Parties"), from and against all claims, damages, losses, expenses,
demands, penalties and suits (including without limitation, attorney's fees, court costs
and any other litigation-related expenses) arising out of or in any way related to (i) any
Environmental Liability resulting from the operations of Grantee, (ii) the presence of any
Environmental Condition created as a result of any operations of Grantee on or in
connection with the use of any of the Easement property, (iii) any personal injury
(including wrongful death) or property damage (real or personal) arising out of or related
to any such Environmental Condition created by or as a result of any operation of
Grantee or environmentally related services performed in response to any such
Environmental Condition, (iv) any failure of Grantee to perform its obligation hereunder,
and/or (v) any violation by Grantee or any of its directors, officers, employees, agents,
or representatives, of any applicable Environmental Law. Grantee agrees, upon notice
and request by an Indemnified Party, to contest and defend any demand, claim, suit,
proceeding or action with respect to which Grantee has herein indemnified and held the
Indemnified Parties harmless, and to bear all costs and expenses of such contest and
defense. The provision of the paragraph shall survive termination or expiration of this
Easement.
7. Consideration. In partial consideration for this Easement, Grantee shall pay
Grantor Two Thousand Five Hundred and no/100 dollars ($2,500.00) at the time of
execution of this Easement.
8. Grantor Obligations. Provided that Grantee is in full compliance with the terms of
this Easement, Grantor shall endeavor to provide Grantee use and enjoyment of the
rights granted to Grantee hereunder, subject to Grantor's operations, the rights of any
third parties and any legal or regulatory obligations.
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9. Cooperation. The Parties shall cooperate in good faith to coordinate activities to
minimize disruption to Grantor's operations. In the event of a scheduling or other
operational conflict regarding use of the Easement, the rights of Grantor shall have
priority over the rights of Grantee.
10. Notices. All notices, demands, or requests from one party to another shall be in
writing and personally delivered or sent by mail, certified or registered, postage prepaid
and return receipt requested, or by telegram, telecopy or recognized courier service:
If to Grantor, addressed to:
Cemex, Inc.
920 Memorial City Way, Suite 100
Houston, Texas 77024
Attention: Real Estate
Telecopy: (713) 722-5116
with a copy (which shall not by itself constitute notice) to:
Cemex, Inc.
920 Memorial City Way, Suite 100
Houston, Texas 77024
Attention: General Counsel
Telecopy: (713) 722-5110
If to Grantee, addressed to:
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
Attention: Director of Water Department
with a copy (which shall not by itself constitute notice) to:
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
Attn: City Attorney's Office
11. Choice of Law. This Agreement shall be governed under the law of the state of
Texas, without regard to its conflicts of laws principles.
12. Miscellaneous. This Agreement contains the entire agreement of the Parties and
supersedes all prior agreements and understandings relating to the subject matter
hereof between the Parties. No amendment or modification to this Easement nor any
waiver of rights hereunder will be effective unless in writing and signed by both Parties.
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The rights and remedies provided by this Agreement are cumulative, and the use of any
one right or remedy by either Party shall not preclude or waive its right to use any or all
other remedies. The rights and remedies herein are given in addition to any other rights
the Parties may have by law, statute, ordinance, otherwise. Pursuit of any remedy
herein provided shall not constitute a forfeiture or waiver of any damages occurring by
reason of the violation of any of the terms, provisions and covenants herein contained.
No waiver of any violation or breach of this Easement shall be deemed or construed to
constitute a waiver of any other violation or breach of this Easement. Either Party may
record a memorandum of this Easement in the real property records of the relevant
county.
TO HAVE AND TO HOLD the above-described easement, together with all and singular
the rights and appurtenances thereto in anyway belonging unto Grantee, and Grantee's
successors and assigns forever; and Grantor does hereby bind itself and its successor
and assigns to warrant and forever defend all and singular the easement unto Grantee,
its successor and assigns, against every person whomsoever lawfully claiming or to
claim the same, or any part thereof.
When the context requires, singular nouns and pronouns include the plural.
L,G M�c-'7C CON',�'C iv4 T!O r .N A2 c�•t.4i s SaU(K� (�-C�
GRANTOR:eEMEj
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GRANTEE: CITY OF FORT WORTH
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M4,fty Hendrix, City S(W By.
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Fernando Costa, Assistant City Manager
APPROVED AS TO FORM AND LEGALITY
Jmss, u)rA NO M&C tti: UtRED
Assistant City Attorney
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ACKNOWLEDGEMENT
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 14n,t LMy,-r, VP of
known to me to be the same person whose name is subscribed to the foregoing
instrument, and acknowledged to me that the same was the act of the City of Fort Worth
and that he/she executed the same as the act of ro"'Eg C,"S-( vLPT. U11TN LL c for the
purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 167-t&/,0
2010 _
.O�lBYPV� CLAUDIA HUEITT
!`
_ Notary Public,State of Texas
My Commission Expires
September 14,2011
Notary Public of Texas
ACKNOWLEDGEMENT
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 Fernando Costa, Assistant City Manager of the
City of Fort Worth, known to me to be the same person whose name is subscribed to
the foregoing instrument, and acknowledged to me that the same was the act of the City
of Fort Worth and that he/she executed the same as the act of the City of Fort Worth for
the purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this?--41 day of Aj f L
' 2010.
otary Public, State of Texas
EVONIA DANIELS
My COMMISSION EXPIRES
^: .. JUIy 10,2013
9
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APPLICATION FOR PIPE LINE CROSSING OR LONGITUDINAL
APPLICANT'S TAX I.D.NOJSS#
A7TN: Permit Specialist for Texas (State)
Legal name of company or municipality who will own the pipeline The City of Fort Worth, Texas
State in which incorporated Texas
If not incorporated,correct name of owners or al I partners: N/A
Correct mailing address 1000 Throekmorton Street Fort Worth Texas Zip Code 76102
Type of Encroachment: Crossing ,/ Longitudinal Telephone $17-392-8480
Location of encroachment Approximately 20'Southwest of the Northeast comer of Santa Fe Northwest Industrial Park 37460_
Name of nearest town on Railroad Saginaw County Tarrant State Texas
Name of nearest roadway crossing Railroad Lonahom Road
Within limits of public road or street Yes j]No If yes,distance from center line of road or street 58 ft.
Width of public road or street 80 ft.
CARRIER CASING
Contents to be handled through pipe L �, 1 Water N/A
Emergency Contact: _�I-t1 _ 07 1-o�-/ A)0,{-I, M.4, i - Emergency Telephone: 7?
Length of pipe on Railroad Co.property
(Plastic pipe must be encased full width of right of way) 40 ft. 40 ft.
Inside diameter of pipe 16 in. 30 in.
Pipe Material Ductile Iron
Steel
Specification&grade(Min_yield strength casing 35,000 psi.) AWWA C151 GRAZ Class 250 ASW A 36
Wall Thickness
(Min wall thickness of casing pipe under 14 in.-0.188 in.E-80 Loading) 0.30 in. 0.50 in.
Actual working pressure 75 psi
Type of joint-(mechanical or welded type) Mechanical Welded
Longitudinal Joint Factor 1
Coating Asphaltic Coal-TAR
Distance Base of tail to top of pipe 8.8 8.2
(Flammable,contents,steam,water or non-flammable-min.5 1/2 ft.under main track.)
(Uncased,gaseous products-min. 10'under track)
Minimum ground cover on Railroad Co.property(min.3 ft.) 8.5 7.9
Cathodic protection casing-(flammable substance) N/A N/A
Type of insulators or supports Stainless Steel Casing Spacers Size NIA Space 6.7"
Number of vents 1 Size 2" Height above ground 24"
(Flammable substances require 2 vents)
Method of crossing: Jacking Trench Dry Bore Only
(if trenched-Railroad furnish flagman at applicant's expense.)
(if bored or jacked-Jacking Pit location minimum 30 ft.from centerline of nearest track.)Pit must not be open more than 48 hours.Also,it must be
protected when not in use.
Does pipeline support oil or gas well? ❑Yes Q No
if yes,advise distance the well is from Railway property- N/A ft. Name of well N/A
Was this service requested by BNSF? Yes ore(circle one)If yes,who requested N/A
Telephone#of Requestor N/A
Attached to this sheet is location plan and detail sketch. Sketch shows tie-down measurement to centerline of nearest road crossing,bridge
or other railroad structure. Please authorize us to proceed with this installation or advise what changes are necessary to meet your specifications.
Signed:
Prim Name: J hn Kasavich J 144 ri seA V I CA 46, ke, r i V
Title: Project Manager'Fort Worth Water Department 1-14
Telephone: (817)392-8480
April 16,2004
Page 5-6
SUZANNE HENDERSON
COUNTY CLERK r"
100 West Weatherford Fort Worth TX 76196-0401
PHONE (817) 884-1195
CITY OF FORT WORTH
900 MONROE STE 404
FT WORTH, TX 76102
Submitter: CITY OF FORT WORTH/RIGHT
OF WAY AND EASEMENT M& C; DATE
TEAM
AGENT E#
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DO NOT DESTROY
WARNING - THIS IS PART OF THE OFFICIAL RECORD.
Filed For Registration: 6/22/2010 9:44 AM
Instrument#: D210149575
E 13 PGS $68.00
By: M& C:
A"-DATE
AGED
!l r- ,
D210149575 -_�-
ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY
BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.
Prepared by: VMMASSINGILL