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HomeMy WebLinkAboutContract 49796 e�t234Ss, Q`S EQ o CITY CV CONTRACT NO., 8 211 EASEMENT ENCROACHMENT LICENSE AGREEMENT oR VVV 1 Commercial 6' C1�OF b g , ✓ 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 Fort Worth Everman/Risinger Development, LLC, a Texas limited liability company ("Licensee"), acting by and through its duly authorized President and Chairman of the Board, owner of the real property located at 425 West Everman Parkway, Fort Worth, TX 76140 ("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 1 Description of the Property; and WHEREAS, the City has a water line easement (the "Easement") in the Property as shown on the map attached to this Agreement as Exhibits "A-1" & 44A-2" 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 water line crossing (the "Encroachment") as described in and at the location shown on Exhibits "A-1" & "A-2" 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 Ease what is specifically described in the Exhibit(s) attached hereto. OFFICIAL RECORD CITY SECRETARY 2015 Easement Encroachment Agreement-Commercial pfgTe�4fTH, TX Southland Business Park 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 11 Southland Business Park 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 KIND 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 11 Southland Business Park 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 11 Southland Business Park 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 11 Southland Business Park 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 11 Southland Business Park Rev. 02/2015 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 of Fort Worth Fort Worth Everman/Risinger Development, LLC, a Texas limited liability company By: Majestic—Everman Investor, LLC a Delaware limited liability company, its Managing Member By: Majestic Realty Co., a California corporation, Manager's Agent By: By: Randle Harwood Name: Edward P. Roski, Jr. Director Title: President and Chairman of the Board Planning and Development Date: % D' I , 2017 ST: Approved As To Form and Legality �T ity Secretary �� Assistant City Attorney ............. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 2015 Easement Encroachment Agreement-Commercial Page o Southland Business Park Rev. 02/2015 STATE OF TEXAS § COUNTY OF TARRANT § Thi-, in-,trnment was acknowledged before me on _ (0C K , 2017 by Randle Harwood , Director of the Planning and Development Department of the City of Po-14--Worth, on behalf the City of Fort Worth. v"L % 6P-,PAL Notary Public, State of TexaQ IRMA SAENZ r�a�y�°�e a_: ,Notary Public, ;?ate of Texas '• r�..c Comm Expires 0 28 2020 Notary ID 2724984 After Recording Return to: Cassandra Foreman Planning and Development Department 1000 Throckmorton Street Fort Worth TX, 76102 OFFICIAL RECORD CITY SECRTARY ! -- WORTH, TX 2015 Easement Encroachment Agreement-Commercial Page 8 of 11 Southland Business Park Rev. 02/2015 S TE OF CALIFORINA § CO Y OF LOS ANGELES § BEFORE , the dersigned authority, a Notary Public in and for the State of California, on this da nally appeared Edward P. Roski, Jr., President and Chairman of the Board, kn to me to be the person whose name is subscribed to the foregoing instrument, and acknow o me that he/she executed the same for the purposes and consideration therein ex as the act and deed of Fort Worth Everman/Risinlzer Development, LLC a Te ited liability company, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE t ' day of , 2017. Notary Public in and for the State of California 2015 Easement Encroachment Agreement-Commercial Page 9 of 11 Southland Business Park Rev. 02/2015 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Los Angeles On September 14, 2017, before me, Laurie Jenkins, Notary Public, personally appeared Edward P. Roski, Jr., who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) LAURIE JENKINS Commission#2077754 Z :�� Notary Public-California z Z Los Angeles County NM Comm.Expires Se 10,201 e OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX LEGAL DESCRIPTION OF THE PROPERTY 2015 Easement Encroachment Agreement-Commercial Page 10 of 11 Southland Business Park Rev. 02/2015 --' - \ EVERMAN PARKWAY {� - t.0 At ZIFFs �------- ------------ �. TRACTI .e _ �14- r .. r .. x � w ra• -Poe r .,a.. d. '' �'.�..,....r.�� �r� ""�:5✓�.."c'..:..1.=`"W..y '^." s s.>., M k— _- ATAMSPS IANDTIRE SURVEY 1t0&3B'l ACRES x===:4'wL ,n. , _ m ®mom,Hwy `� —R�J FSJ.SCOTTSURVEY,PboYutl N.. 96 y O No 7 '» M. ��" - GEORGE SURVEY.A➢s5att 51 CITY n;.. FORT WORTH 9F TARF-TRRANT COUNTY,TC%AS EXHIBITS "A-I" & 66A-2" Map of Encroachment and Easement 2015 Easement Encroachment Agreement-Commercial Page 11 of 11 Southland Business Park Rev.02/2015 Exhibit"A-1"-Sheet 1 of 2 `FUTURE SUITE A € FUTURE SUITE 5 I FUTURE SUITE 6 1 LOT 1,BLOCK 1 I SOUTHLAND BUSINESS PARKADDITION jry~I L-------- I I� I I I _ $ ------- ----t c ----------- -------------------- ----a -- - O V ftI � � I — ,.�.u,,. _ ,guy. ___ o.�a.�.s s,..ML,.E . ,� �_• Rx 5 5: MATCH LINE,SHEETC8.02 4, Lu M _ z 4 m0Ojo STORM UNE KEY MAV J m a _ k 1 GE..E.w...�..Om., i1LLI F­ rt$� Zo 3� J + 0 Q N Call C3.030. Exhibit"A-1"- Sheet 2 of 2 I I �I �I I I,611 6 1 a I TJ LOT r �L w 8 .A«... L0T5bBL 1. \„ q iI lti NNt L s 1 a Bp _ c j_ j w • !a � s � � �_ '"S�6 �$ 5'�t a s 'Q S 1:, qk� i _-; '. g�A Fezu. I z� O Wa w 0 + e.m .ke WATER LINE A 0105 STATION 38+DO TO END Exhibit"A-2" Im FRONTAGE ROAD INTERSTATE HIGHWAY 1-35 W --------- _ — — A �,"' LEGEND Oil 5��will �IK II KEY MAP gy I I ----------- -------------- '0j '0j O uu.n-r ®voum.wuA .w'"�anue� ...:•....A...� 0 } rmuuuev. WATE0.NNE LOWEyNG DETAIL ]]OS 12' W KLU g W a a - r-0 <O PUBLIC WATER LINE(X-9281) e E G100a I Liability Insurance Endorsement Policy Period DECEMBER 13,2016 TO DECEMBER 13,2017 Effective Date DECEMBER 13,2016 Policy Number 3533-36-57 LAO Insured MAJESTIC REALTY CO Name of Company FEDERAL INSURANCE COMPANY Date Issued DECEMBER 8,2016 This Endorsement applies to the following forms: GENERAL LIABILITY Under Who is An Insured,the following provision is added Who Is An Insured Additional Insured- Persons or organizations shown in the Schedule are insureds;but they are insureds only if you are Scheduled Person obligated pursuant to a contract or agreement to provide them with such insurance as is afforded by Or Organization this policy. However,the person or organization is an insured only: • if and then only to the extent the person or organization is described in the Schedule; • to the extent such contract or agreement requires the person or organization to be afforded status as an insured; • for activities that did not occur,in whole or in part,before the execution of the contract or agreement;and • with respect to damages,loss,cost or expense for injury or damage to which this insurance applies. No person or organization is an insured under this provision: • that is more specifically identified under any other provision of the Who Is An Insured section(regardless of any limitation applicable thereto). • with respect to any assumption of liability(of another person or organization)by them in a contract or agreement.This limitation does not apply to the liability for damages,loss,cost or expense for injury or damage,to which this insurance applies,that the person or organization would have in the absence of such contract or agreement Liability Insurance Additional Insured-Scheduled Person Or Organization continued Form 80-02-2367(Rev.5-07) Enc orsement Page 1 Liability Endorsement (continued) Under Conditions,the following provision is added to the condition titled Other Insurance. Conditions Other Insurance— If you are obligated,pursuant to a contract or agreement,to provide the person or organization Primary, Noncontributory shown in the Schedule with primary insurance such as is afforded by this policy,then in such case Insurance— Scheduled this insurance is primary and we will not seek contribution from insurance available to such person Person Or Organization or organization. Schedule Persons or organizations that you are obligated,pursuant to a contract or agreement,to provide with such insurance as is afforded by this policy. PERSONS OR ORGANIZATIONS THAT YOU ARE OBLIGATED,PURSUANT TO WRITTEN CONTRACT OR AGREEMENT BETWEEN YOU AND SUCH PERSON OR ORGANIZATION,TO PROVIDE WITH SUCH INSURANCE AS IS AFFORDED BY THIS POLICY;BUT THEY ARE INSUREDS ONLY IF AND TO THE MINIMUM EXTENT THAT SUCH CONTRACT OR AGREEMENT REQUIRES THE PERSON OR ORGANIZATION TO BE AFFORDED STATUS AS INSURED. HOWEVER,NO PERSON OR ORGANIZATION IA AN INSURED UNDER THIS PROVISION WHO IS MORE SPECIFICALLY DESCRIBED UNDER ANY OTHER PROVISION OF THE WHO IS AN INSURED SECTION OF THIS POLICY(REGARDLESS OF ANY LIMITATION APPLICABLE THERETO). All other terms and conditions remain unchanged Authorized Representative Qom , Liability Insurance Additional Insured-Scheduled Person Or Organization last page Form 80-02-2367(Rev.5-07) Endorsement Page 2 CHUBS' Policy Conditions Endorsement Policy Period DECEMBER 13,2016 TO DECEMBER 13,2017 Effective Date DECEMBER 13,2016 Policy Number 3533-36-57 LAO Insured MAJESTIC REALTY CO Name of Company FEDERAL INSURANCE COMPANY Date Issued DECEMBER 6,2016 This Endorsement applies to the following forms: COMMON POLICY CONDITIONS Under Who Is An Insured,the following provision is added. Conditions Notice of Cancellation When we cancel this policy we will notify person(s)or organizations(s)shown in the Schedule To Scheduled Persons at least 30 days(10 days in the event of nonpayment of premium)in advance of the Or Organizations When cancellation date. We Cancel Any failure by us to notify such person(s)or organization(s)will not: impose any liability or obligation of any kind upon us;or invalidate such cancellation. Schedule Person(s)or Organization(s): City of Fort Worth Planning and Development Department Attn: Randle Harwood Address: 1000 Throckmorton Fort Worth,TX 76102 Policy Conditions Notice of Cancellation To Scheduled Persons Or Organizations continued For►80-02-9780(Ed.3-11) Endorsement Page 1 CHUBS' Conditions (continued) All other terms and conditions remain unchanged. Authorized Representative Q,'A" a Policy Conditions Notice of Cancellation To Scheduled Persons Or Organizations last page Form 80-02-9780(Ed.3-11) Endorsement Page 2 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 reportin requirements. Jd4r�t� A Janie S. Morales Development Manager E RECORD RETARY TH,TX