HomeMy WebLinkAboutContract 52496 (2) RY
CACOTR NO. 5a'HIV
RECENED EASEMENT ENCROACHMENT LICENSE AGREEMENT
o 2 8 2019 Commercial
Cl CIv Sv5pRy
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
Planning and Development Director, and CVS PHARMACY, INC., a Rhode Island
corporation ("Licensee"), owner of the real property located at 1933 Heritage Trace
Pkwy, Fort Worth, Texas 76177 ("Property"), acting by and through its duly authorized
representative.
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, attached as "Exhibit C" and incorporated herein for all
purposes; and
WHEREAS, the City has two permanent drainage facility easements separately
recorded among the Official Public Records of Tarrant County as D215019585 and
D214255242 (the "Easements") in the Property as shown on the map attached to this
Agreement as "Exhibit A,"which is incorporated herein for all purposes; and
WHEREAS, Licensee desires to construct, place, and/or maintain a sewer line
and related facilities which will encroach in, on, above, or below the City's Easements;
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 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 in, on, above, or below and
occupy a portion of the City's Easements 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 sewer line and related facilities (the "Encroachment").
Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining
the Encroachment within the Easements. Licensee shall not expand or otherwise cause
OFFICIAL RECORD
Easement Encroachment Agreement-Commercial 1
oy
FT, WORTH,TX
the Encroachment to further infringe in or on City's Easements beyond what is
specifically described in Exhibit A attached hereto.
2.
All construction, maintenance, or operation in connection with such
Encroachment, use, and occupancy shall comply and be performed in strict compliance
with this Agreement and with the Charter, Ordinances, and Codes of the City, and in
accordance with the directions of the Director of the Transportation and Public Works
Department or the Director of the Water Department, or their duly authorized
representative. Prior to the construction of the Encroachment, Licensee shall submit all
plans and specifications to the applicable Director or duly authorized representative.
Licensee shall not commence construction of the Encroachment until such approval shall
be indicated in writing by the applicable Director or authorized representative. However,
such approval shall not relieve Licensee of responsibility and liability for concept, design,
and computation in the preparation of such plans and specifications.
3.
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, use, and occupancy, including securing the approval and consent of the
appropriate utility companies and agencies of the State 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, Licensee shall pay to the 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 their duly authorized
representative.
4.
Licensee agrees that the 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. The City shall bear no responsibility or liability for any
damage or disruption or other adverse consequences resulting from the Encroachment
installed by Licensee, but the City will 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 Easements to a condition
Easement Encroachment Agreement-Commercial Page 2 of 12
Revised 12/2018
acceptable to the Director of Transportation and Public Works or the Director of the
Water Department,or their duly authorized representative, in accordance with then-
existing City specifications. It is understood and agreed to by Licensee that if this
Agreement terminates and Licensee fails to remove the Encroachment as directed and
restore the Easements, Licensee hereby gives the City permission to remove the
Encroachment and any supporting structures and 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 encroachments and uses provided for by this Agreement, Licensee has
paid to City at the time this Agreement is requested an application fee of in the sum of
Five Hundred Dollars ($500.00), and City hereby acknowledges receipt of said
application fee.
7.
The term of this Agreement shall be for thirty (30) years, commencing on the
date this Agreement is executed by the City. However, this Agreement may be
terminated upon Licensee's noncompliance with any of the terms of this Agreement. City
shall notify Licensee in writing of any noncompliance and if not cured within thirty (30)
days, this Agreement shall be deemed terminated, unless such noncompliance is not
susceptible to cure within thirty (30) days, in which case this Agreement shall be deemed
terminated in the event that Licensee fails to commence and take such reasonable steps as
are necessary to remedy the noncompliance within thirty (30) days after written notice
specifying the same, or having so commenced, thereafter fails to proceed diligently and
with continuity to remedy same. At the end of the term, whether by expiration or earlier
termination, the City covenants to negotiate in good faith to renew this Agreement on
substantially the same terms and conditions as contained herein.
8.
It is further understood and agreed between the parties hereto that the Easements
to be used and encroached upon are held by City as trustee for the public; that City
exercises such powers over the Easements 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 Easements 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 Easements 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
Easement Encroachment Agreement-Commercial Page 3 of 12
Revised 12/2018
the parties agree to negotiate in good faith in order to accommodate the Encroachment
and the public purpose.
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, 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 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
$19000,000
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. The City may obtain an updated
Certificate of Insurance at any time during the term of this Agreement by accessing
Licensee's online insurance portal located at:
https://Online.marsh.com/marshconnecipublic/marsh2/public/moi?client=3 5 3 5 866.
Easement Encroachment Agreement-Commercial Page 4 of 12
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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 the cleaning and
restoration of the Easements.
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 Tarrant County, Texas. 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 uses.
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 Easements and is not a conveyance of any right, title, or interest in or to the
Easements,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.
Easement Encroachment Agreement-Commercial Page 5 of 12
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In any action brought by the City for the enforcement of the obligations of the
Licensee,the 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]
Easement Encroachment Agreement-Commercial Page 6 of 12
Revised 12/2018
City: Licensee:
CITY F RT W RTH CVS PHARMACY, INC.
6 '--
By: I T7
By:
Randle Harwood, Director Name: Toni A. Motta
Planning & Dev lopme t Title: Assistant Secretary
Date: ' Date: o�;
CVS Legal Approval: Dustin Stevens,
Holland & Knight LLP
s` � ,C'
ATTEST: �� Approved As To Form and Legality
City Se Assistant City Attorney
Trey Qualls,Assistant City Attorney
Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of is c ntract, includi g ensuring all performance
reporting requirements.
fVWr�h ZL 11
Janie S. Morales
evelopment Manager
rFT.
L RECORD
ECRETARY
ORTH TX
Easement Encroachment Agreement-Commercial ge 7 of 2
evise
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 Randle Harwood, 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 day of
20 .
Notary Pu in an f the State of Texas
JENNIFER LOUISE EZERNACK
Notary Public,State of Texas
Comm.Expires 03-01-2020
Notary ID 130561630
After recording return to:
Planning&Development
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX
Easement Encroachment Agreement-Commercial
Revised 12/2018
STATE OF-TET7ES" §
COUNTY OF §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
q—wij ldclrA-9_a this day personally appeared Toni A. Matta, Assistant Secretary, 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 CVS Pharmacy, Inc., a Rhode Island
corporation, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this v day of
920
email L. e
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N
ray c
Notary Public in and for the �bli
State of
Rhode is\'
Gail 4. Beaulieu
Notary Public 28998
State of Rhode Island
My Comm. Expires 06/27/2021
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX
Easement Encroachment Agreement-Commercial Page 9 of 12
Revised 12/2018
EXHIBIT A
Map of Easements and Encroachment
Easement Encroachment Agreement-Commercial Page 10 of 12
Revised 12/2018
Exhibit A
N LEGEND
LINE TABLE
\CIRS IRON ROD WITH RED PLASTIC CAP
W E \\ STAMPED'W.A.I.5714"SET FOR CORNER LINE# BEARING DISTANCE
C00 COUNTY CLERK'S INSTRUMENT NUMBER
L1 N01°48'10"W 3.94'
\ p 1S5 3 CITY OF FORT WORTH L2 N01°48'10"W 10.00,
\ �01 CITY OF FORT WORTH PERMANENT DRAINAGE
Scale 1"=30' \ PERMANENT DRAINAGE\ FACILITY EASEMENT
FACILITY EASEMENT CC#D215019585
CC#D214255242 \
\ \FACILITY EASEMENT LOT 1,BLOCK 1\
CC#D217215222 \ CVS-�HARMON ADDITION
\ CC ttD217215222 `
Yzv�
LOT 2,BLOCK 1 PUBLIC ACCESS
�
CVS—HARMON ADDITION EASEMENT g� /
CC#D217215222 CC#D217215222
PROPOSED 4' PROPOSED 4" \
MANHOLE SANITARY SEWER112. \
�� �101°48'10"W 11 RS (PRIVATE)
15.00, _ N89°32'39"E 136.15'
PROPOSED
15x 5'SEWER LIFT STATION
EASEMENT
CC#D217215222 L _ _ -S89°32'39"W 138.73'
C1 ENCROACHMENT EXHIBIT
112" 0.032 ACRES(1,375 SQUARE FEET)
POINT OF CIRS J
INT OFCOMMENCING GINNING CURVE TABLE
HERITAGE TRACE PARKWAY NO. DELTA RADIUS LENGTH CH.L CH.B
CVS PHARMACY, INC. (VARIABLE WIDTH RIGHT-OF-WAY 130'-1421) C1 0°4a46" 1,265.00' 15.00' 15.00' N88°24'09"E
ONE CVS DRIVE CABINET A,SLIDE 11772
WONSOCKET, RI 02895 C2 14°24'43" 134.93' 10.39' 10.39' S16°08'48"E
V
Wi®kelmann Preliminary,this document SHEET
& Associates, Inc. shall not be recorded for any ENCROACHMENT EXHIBIT
CONSUL MG OML Iea"uns SUWMRS Scale ' 30 purpose and shall not be used
'""=•" �O°�m ��° Date: oa.os.9 0.032 ACRES(1,375 SQ. FT.) OF
+�+ or viewed or relied upon as a
Dw,Fle: 70952-EXH-ENCROACH
m+ final survey document
COGVRIGHT O i1R9.WnYeYnann 6 A+eoaaes.b¢ Pro ect No.: 70952
RVEY%EYhibR3%09 -EN .*W9
EXHIBIT B
Certificate of Insurance
Easement Encroachment Agreement-Commercial Page 11 of 12
Revised 12/2018
EXHIBIT C
Metes and Bounds Legal Description of the Property
Easement Encroachment Agreement-Commercial Page 12 of 12
Revised 12/2018
Exhibit C
OWNERS CERTIFICATE
STATE OF TEXAS §
COUNTY OF COLLIN §
BEING a tract of land situated in the JOSIAH WALKER SURVEY, ABSTRACT NO. 1600, in the City of Fort Worth,
Tarrant County, Texas, and being a portion of Lot 1, Block 1, CVS—Harmon Addition, an addition to the City of Fort
Worth, Tarrant County, Texas, according to.the Plat thereof recorded in County Clerk's Instrument No. D217215222,
Official Public Records, Collin County, Texas, and also being a portion of a tract of land described in deed to CVS
Pharmacy, Inc. as recorded in County Clerk's Instrument No. D216004322, Official Public Records, Tarrant County,
Texas, and being more particularly described as follows:
COMMENCING at a 1/2-inch iron rod with a red plastic cap stamped"W.A.I. 5714"set for the Southwest corner of said
Lot 1, and the Southeast corner of Lot 2, Block 1, of said CVS — Harmon Addition, said point being situated in the North
right-of-way of Heritage Trace Parkway, a variable width right-of-way, and being the beginning of a curve to the right
having a radius of 1,265.00 feet, a central angle of 00 deg 40 min 46 sec, a chord bearing of North 88 deg 24 min 09 sec
East, and a chord length of 15.00 feet, from which a 112-inch iron rod with red plastic cap stamped"W-A.I. 5714"set for
corner bears North 01 deg 48 min 10 sec West at a distance of 15.00 feet;
THENCE along the North right-of-way of said Heritage Trace Parkway, the South line of said Lot 1, and said curve to the
right, an arc distance of 15.00 feet to a point for corner at the intersection of the North right-of-way of said Heritage Trace
Parkway with the East line of a 15-foot by 15-foot sewer easement per Plat of said CVS— Harmon Addition;
THENCE North 01 deg 48 min 10 sec West, departing the North right-of-way of said Heritage Trace Parkway, over and
across said Lot 1, along the East line of said 15-foot by 15-foot sewer easement, a distance of 3.94 feet to the POINT OF
BEGINNING;
THENCE North 01 deg 48 min 10 sec West, continuing over and across said Lot 1 and along the East line of said 15-foot
by 15-foot sewer easement, a distance of 10.00 feet to a point for corner;
THENCE departing the East line of said 15-foot by 15-foot sewer easement, continuing over and across said Lot 1, the
following courses and distances:
North 89 deg 32 min 39 sec East, a distance of 136.15 feet to a point for corner, said point being situated on the
East line of a City of Fort Worth Permanent Drainage Facility Easement per document recorded in County Clerk's
Instrument No. D215019585, Official Public Records, Tarrant County,Texas, said point also being the beginning of a
non-tangent curve to the right having a radius of 134.93 feet, a central angle of 04 deg 24 min 43 sec, a chord
bearing of South 16 deg 08 min 48 sec East, and a chord length of 10.39 feet;
Along said non-tangent curve to the right to the right and the East line of said City of Fort Worth Permanent Drainage
Facility Easement, an arc distance of 10.39 feet to a point for comer;
South 89 deg 32 min 39 sec West, departing the East line of said City of Forth Worth Permanent Drainage Facility
Easement, a distance of 138.73 feet to a point for corner to the POINT OF BEGINNING.
CONTAINING within these metes and bounds 0.032 acres or 1,375 square feet of land, more or less. Bearings shown
hereon are based upon an on-the-ground Survey performed in the field on the 26th day of January, 2015, utilizing a
G.P.S. measurement (NAD 83, grid) from the GeoShack VRS Network.
Winkelmann ENCROACHMENT EXHIBIT
& Associates, Inc. Preliminary, this 0.032 ACRES
document shall not be SHEET
CONSULTING CIVIL ENGINEERS ■ SURVEYORS (1 375 SQ. FT.)
5750 NIU m Aa3f PLAZA ar.SUITE 325 (on)49o-Iwo recorded for any '
GLLL.7.TOGS 752M (2n)43(-71M FAX
Texas Engineers RegisUa6on No.69 purpose and shall not
Texas Surveyors No,10OBE6W Expires 12-31-2019
COPYRIGHT 02019.Wnkelmann 8 M—ales.Inc be used or viewed or CVS PHARMACY, INC. OF
scale: NSA relied upon as a final
Date: 03.05.19 survey document. ONE CVS DRIVE 2
DW .File: 70952-EXH-ENCROACH WONSOCKET, RI 02895
Project No.: 70952
G:\709\52\SURV EY\Exhihitsl70952-EXH-ENCROACH.dwg