HomeMy WebLinkAboutContract 51096 ' \0 Q CITY SECRETARY a
CQNTRACT NO.
N-5
EASEMENT ENCROACHMENT LICENSE AGREEMENT
Commercial
THIS AGREEMENT is made and entered into by and between THE CITY OF FORT
WORTH, a home rule municipal corporation of Tarrant County, Texas ("City"), acting by and
through its duly authorized City Manager, its duly designated Assistant City Manager or
Planning and Development Director, and HARPER CHISHOLM RETAIL, LLC, a Texas
limited liability company ("Licensee"), acting by and through its duly authorized managing
member, Shane Shoulders, owner of the real property located at Lot 3, Block 1, Chisholm Trail
Ranch,Fort Worth, TX 76036 ("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 sewer 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 a private drainage pipe that will service Lot 1 and Lot 2 of Chisholm Trail Ranch
(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 infringe in or on City's Easement beyond what is
specifically described in the Exhibit(s) attached hereto, without prior written consent from the
City, which consent shall not be unreasonably conditioned or withheld.
2.
All construction, maintenance and operation in connection with such Encroachment, use
and occupancy shall be performed in strict compliance with this Agreement RHO Me ty's
OFFICIAL RECORD
CITY SIC
o 10
2015 Easement Encroachment Agreement—Commercial 17
a1lCi
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, which approval shall not be unreasonably conditioned or
withheld, 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, so long as such amount is commercially reasonable.
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.
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
Page 2 of 10
2015 Easement Encroachment Agreement—Commercial Rev. 10/2017
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 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
Page 3 of 10
2015 Easement Encroachment Agreement—Commercial Rev. 10/2017
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.
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.
Page 4 of 10
2015 Easement Encroachment Agreement—Commercial Rev. 10/2017
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 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]
Page 5 of 10
2015 Easement Encroachment Agreement—Commercial 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:
CITY OF WO H --H OLM RETAIL LLC
By: By:
Randle Harwood Sha e S Uers
Director Managing Member
Planning and De lopment
/...
AA-
Date:
_Date: `(/ ,
T �
ATTE oved As To Fo and Legality
®�
City Secretary *' ...As stant City Attorney
iinpliance 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.
Janie S. Morales
Development Manager
OFFICIAL RECORD
CITY SECm Aw
PT. W() "jf,TX
Page 6 o
2015 Easement Encroachment Agreement—Commercial Rev. 10/2017
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on?" �01F by Randle Harwood,
Director of the Planning and DevelopmentqNot
ent of the City of Fort Worth, on behalf the
City of Fort Worth.
Publi , tate of e
JENNIFER LOUISE EZERNACK
J�t►'A.,veli'
Notary Public, state of Texas
Comm. Expires 03-01-2020
Notary ID 130561630
After Recording Return to:
City of Fort Worth Planning& Development
CFA Office
200 Texas Street
Fort Worth TX, 76102
Page 7 of 10
2015 Easement Encroachment Agreement—Commercial Rev. 10/2017
STATE OF §
COUNTY OF :ja VCC n '" §
BEFORE ME, the undersigned authority, a1Notary Public in and for the State of Texas,
on this day personally appeared ,_)�C[3� \�YlpLl�. C(Q6(title), 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 (UC 5h0)tl a :EteZ� 1i1�JITj%'d&ntW Cb,, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 20 .
uyt
•• �,.: CHRISTINA KAY WIES Notary Public in and for t
My Notary ID#125442510
Expires September 22,2021
N•N
State of � �5
Page 8 of 10
2015 Easement Encroachment Agreement—Commercial Rev. 10/2017
LEGAL DESCRIPTION OF THE PROPERTY
Page 9 of 10
2015 Easement Encroachment Agreement—Commercial Rev. 10/2017