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HomeMy WebLinkAboutContract 50389 CITY SECRETARY CONTRACT NO. EASEMENT ENCROACHMENT LICENSE AGREEMENT Commercial 19A,� l � 201g Y�r'08T , THIS AGREEMENT is made and entered into by and between THE CITY OF �SFCRErgRy Oh' 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 ART MORTGAGE BORROWER PROPCO 2010-4 LLC , a(n) Delaware limited liability company ("Licensee"), acting by and through its duly authorized , owner of the real property located at 350 Meacham Blvd. , Fort Worth, TX 76106 ("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 Description of the Property; and WHEREAS, the City has a Public Drainage and Utility easement (the "Easement") in the Property as shown on the map attached to this Agreement as Exhibit "A" 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 constructing, placing and maintaining 112 LF of Railroad Spur Track (the "Encroachment") as described in and at the location shown on Exhibit "A" 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 4 Easement Encroachment Agreement--Commercial Page 1 of 1 PN 18 - 00002 OFFICIAL REju D Rev. 10/2017 CITY SECREY T.�!►RTiN infringe in or on City's Easement beyond what is specifically described in the Exhibit(s) attached hereto. 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. Easement Encroachment Agreement—Commercial Page 2 of 11 PN 18 _ 00002 Rev. 10/2017 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 ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT Easement Encroachment Agreement—Commercial Page 3 of 11 PN 18 _ 00002 Rev. 10/2017 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. Easement Encroachment Agreement—Commercial Page 4 of 11 PN 18 _ 00002 Rev. 10/2017 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 default or otherwise shall not require City approval provided that Easement Encroachment Agreement—Commercial Page 5 of 11 PN 18 _ 00002 Rev. 10/2017 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] Easement Encroachment Agreement—Commercial Page 6 of 11 PN 18 _ 00002 Rev. 10/2017 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: ART MORTGAGE BORROWER CITY ORT TW TH PROPCO 2010-4 LLC (Entity) By:. ° By: GG andle HarXod Name: D NE G DFOCK .n Director Title: vice rreddW AWft GewW ca...d Planning and Development Date: I 20 1(� Date: ,20 l oRTo. ST: ;` pproved As To Form and Legality U' �5Ly Secretary TE7CP` Assistant City 14 Attorney Contract Compliance Manager M&C' By signing I acknowledge that I am the person 1295.:%:� Responsible for the monitoring and Administration Of this contract, including ensuring all performance And reporti g requi ents. � /���4 Janie S.Morales Development Manager OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Easement Encroachment Agreement—Commercial Page 7 of 11 PN is _ 00002 Rev. 10/2017 � . 11 11 STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on 201% by Randle Harwood, Director of the Planning and Development Department of the City of Fort Worth, on behalf the City of Fort Worth. JENNIFER LOUISE EZERNACK �allotary Public, State of Texas 91 +P Comm. Expires 03-01-2020 Notary ID 130561630 Nota Public, State of Texas Easement Encroachment Agreement—Commercial Page 8 of 11 PN 18 _ 00002 Rev. 10/2017 STATE OF § COUNTY OF &44—_ § BEFORE ME, the undersigned authority, a Notary Public in and for the State of on this t; 4ay personally appeared Qgzls'; C '0 , tle), known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 2018 Notary Public in Ld for the State of rc�— ot1111111111� L Cly J •.. �ssioN�,•y�, After Recording Return to: City of Fort Worth = ?• y? _� Planning and Development Department p �+ F 'OtJB-NC., CFA Office ���-o %;Fi1�BE200 Texas Po�:•'•�OQ�� Fort Worth TXe76102 ''����llNM 00�`,`` Easement Encroachment Agreement—Commercial Page 9 of 11 PN is - 00002 Rev. 10/2017 LEGAL DESCRIPTION OF THE PROPERTY Lot 3, Block 3, Railhead Fort Worth Addition recorded in Cabinet A, Slide 8995, of the Plat Records of Tarrant County Texas, being 28.027 acres of land located in the W.B. Tucker Survey, Abstract No. 1515, and the J. Wallace Survey, Abstract No. 1605, and the S.A. & M.G.R.R. Co. Survey, Abstract No. 1464, City of Fort Worth, Tarrant County, Texas. Easement Encroachment Agreement—Commercial Page 10 of 11 PN 18 _ 00002 Rev. 10/2017 EXHIBIT "A" Map of Encroachment and Easement Easement Encroachment Agreement—Commercial Page 11 of 11 PN 18 - 00002 Rev. 10/2017 EXHIBIT A o w Lo N Y g 0 LL- C; O z >o � � j d Q o d 7mh Ia < H w as m � � 9N lit I W xZw a w 4 �z mto 1 Q C7 wz z =W Oil UQ o W I U � Woo 0 z ca O imp < ,. U) 3 � QF s Ir � Z Ef M- LU Z� 0 8 m W r/ O 0 �Q1J 1+t 7 o Iw y_ ~ o Q Fn x 20 W 3ARl0 ':)NOD '1SD(3 / > a c M WW pO N A 01 ZWKW3 d Zli-o OD Ir xa F ww c v I 2 I > 'LIL v, o C w o<o c�3 0— m m o =HW / / EZ 4c FwO / / �° c g xm wca NCD To- OD ov ma W 7 W J�O qq 4• / / OV08 ONWR 3f M G 0 z / / //// `p�PGS �' 5�• �m a� ��P a SIS G5 Q.,, JOE a� G y° �`� 3H1dS moa / ��. IMUS NIVN so Ria 3 ACVRV CERTIFICATE OF LIABILITY INSURANCE DATEc°" ' 18 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED,the policy(les)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). CONTACT PRODUCER Beecher Carlson Insurance Services NAME: TL Diane Staicu 6 Concourse Parkway,Suite 2300 PHONEI FAX Atlanta, GA 30328 JAMA11.111ak- IM E-MAR e AOD dstalcup0beechercarlson.com INSURER(31 AFFORDING COVERAGE NAIC 0 www.beacharcarlson.com INSURER A_ Hartford Fire insurance Company 19682 INSURED NsuRER s: Property Casualty Insurance Company of Hartford 34690 Amedcoid Realty Trust INSURER c: Twin CI Fire Insurance Company 29459 and Subsidlarles/Named Insured(see attached) 10 Glenlake Parkway INSURER D: Everest National Insurance Company 10120 Suite 600,South Tower INSURER R: Atlanta GA 30328 INSURER F COVERAGES CERTIFICATE NUMBER:40061037 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILTR NSR I OR POLICY EFF POUCYEXP TYPE OF INSURANCE POLICY NUMBER MIoNyrfl LIMITS A COMMERCIAL GENERAL LIABILITY ✓ 20 ECS S12316 10/1/2017 10/1/2018 EACHOCCURRENCE 31.000.000 DAMAGE TO RERTEff- CLAIMS-MADE ©OCCUR aQocurnmw $1,000,000 ✓ Contractual LlabllllY MED EXP oneperson) $ ✓ $100K Self Insured Retention PERSONAL 3 ADV INJURY $1,000,000 GENIAGGREGATE{LIMIT APPLIES PER: GENERAL AGGREGATE 12,000,000 F✓ POLICY a!ECT FILOC PRODUCTS-COMP/OP AGG s2,000,000 q OTHER: $ A AUTOMOBILELIABILITY 20 CSE S12318 10/1/2017 10/1/2018 CMC ,!=DSlNGLELIMfT 53,01]0 000 / ANY AUTO BODILY INJURY(Per person) S OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY(Peracddent) s HIRED NON-OWNEDWM S AUTOS ONLY AUTOS ONLY 31�MVWM s D UMaimuALIAsEOCCUR XC3C000014-171 10/1/2017 10/1/2018 EACH OCCURRENCE SI00000D0 EXCESS LIB CLAIMS-MADE AGGREGATE $10,000,000 DED RETE s $ B WORMRSCOMPENSAMON 20 WN S12314(AOS) 10!1/2017 10/1/2018 C ANDeMPLOYERs LU1sluTY YIN 20 WBR S12315(1M) 10/1/2017 10/1/2018 ANYPROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT S 1000.ODO OFFICER/MEMBEREXCLUDED9 FN I N I A --- (MandalIM In NH) E.L.DISEASE-EA EMPLOYEE s QQU110 If DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES(ACORD 101,Additional Remarks Schedule,may be alhchad K mon specs Is required) Ref.Premises: 350 Meacham Blvd.,Fort Worth,TX 78106 Certificate holder is included as Additional Insured to the extent required by written contract only. Coverage sppplIles per terms of Easement Encroachment License ense Agreement Policy provisions include 30 days Notice of Cancellation,10 days 4ornon-payment of premium. CERTIFICATE HOLDER CANCELLATION ANY OFBEFORE City of Fort Worth THE SHOULD EXPIRA71ONH DATE THEREOF,ABOVEDESCRIBEELLED NOTICE tEWILL CBE C DELIVERED N Planning and Development Department ACCORDANCE WITH THE POLICY PROVISIONS. 1000 Throckmorton Street Fort Worth TX 76102 AUTHORIZED REPRESENTATIVE Sharon D.Brainard ®1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD 40061037 1 17-1e GL/Aa/MC/$10H xE 1 (ATLI Diane Etaleuy 1 1/25/201e 4:10:39 FM (EST) I Page 2 of 2 AGENCY CUSTOMER ID: _ LOC 0: ACCP ADDITIONAL REMARKS SCHEDULE Page of AGENCY NAMEDINSURED Beecher Carlson Insurance Services Amerlcotd Realty Trust 1and ftl eiaPeet/Named insured(see attached) na roucY NUMaER Suite 600 Se" Atlanta G 8 CARRIER NAIC GOD! EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE:Certificate of Liability(03/18 HOLDER:City of Fort Worth Planning and Development Department ADDRESS:1000 Throckmorton Street Fort Worth TX 76102 CERTIFICATE ATTACHMENT INSURED: Americold Realty Trust POLICY TERM: 10/01/2017 - 10/01/2018 NAMED INSUREDS: The following are also considered to be a Named Insured under the policies above: any subsidiary: a. of any corporation named below; or b. owned by a parent corporation that is a Named Insured, or subsidiary thereof, and has a financial interest of more than So% of the voting stock. Americold Logistics, LLC Americold Realty Operating Partnership, L.P. Art AI Holdings LLC Art Quarry TRS LLC Atlas Cold Storage Holdings, Inc. Atlas Cold Storage Logistics LLC Atlas Icecap Holdings LLC Atlas Logistics Group Retail Services, LLC Americold Transportation Services, LLC (fka Cold Chain Transportation, LLC) Versacold Logistics LLC Versacold Logistics Services U.S. LLC Versacold Logistics Services U.S. LLC dba Versacold Logistics Services Versacold Midwest LLC Versacold USA, Inc. Versacold U.S. , Inc. Versacold Texas, L.P. Versa Cold Southwest Transportation Versacold Southwest NOTE: Automobile PHYSICAL DAMAGE and TRAILER INTERCHANGE Deductibles: COLLISION: $25,000 Deductible (Per Accident) - Americold/ColdChain/Versacold (2007 and Newer) $50,000 Deductile (Per Accident) - Atlanta 3PL/Atlas, All units designated as "Atlanta 3PL/Atlas": all power units, trailer units $50,000 or greater in value COMPREHENSIVE: $25,000 Deductible (Per Accident) - Americold/ColdChain/Versacold (2007 and Newer) $50,000 Deductile (Per Accident) - Atlanta 3PL/Atlas, All units designated as "Atlanta 3PL/Atlas" : all power units, trailer units $50,000 or greater in value Automobile LIABILITY Deductibles: $100,000 Deductible (Each Accident) - Americold/ColdChain/Versacold $500,000 Deductible (Each Accident) - Atlanta 3PL/Atlas ACORD 101(2008101) m 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ATTACHMENT 40061037 1 17-1e GL/AL/NC/01014 XS I (ATL) Diane etalmp 1 1/25/2018 4:40:39 P14 (EST) I Page 2 of 2