HomeMy WebLinkAboutContract 52623 CITY SECRETARY
CONTRACT NO. J5 a(o a 3
DECEIVED EASEMENT ENCROACHMENT LICENSE AGREEMENT
AUG -7 2019 Commercial
CITY OF FORT WORTH
C17YSECRLTARY
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 ABRES III, LTD., a Texas limited
partnership ("Licensee"), owner of the real property located at East of Haltom Road,
North of 820 in Haltom City, Fort Worth, Texas 76137("Property"), acting by and
through its duly authorized General Partner.
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 a sanitary sewer easement recorded as Volume 7283,
page 1,797, Deed Records, Tarrant County, Texas (the "Easement") 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 certain
improvements which will encroach in, on, above, or below the City's Easement; 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 Easement as described in and at the location shown on
Exhibit A, but only to the extent shown thereon, for the purpose of installing a retaining
wall and private drive, and raising the grade of a portion of the soil above the
existing sanitary sewer line (the "Encroachment"). Upon completion of the
Encroachment, Licensee agrees to be responsible for maintaining the Encroachment
within the Easement. Licensee shall not expand or otherwise cause the Encroachment to
OFFICIAL RECORD
Easement Encroachment Agreement-Commercial
FT. WORTH,T
further infringe in or on City's Easement beyond what is specifically described in the
exhibit(s) 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 date hereof, Licensee has submitted plans and specifications
to the applicable Director or duly authorized representative, which have been approved by
the City. 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 sanitary sewer lines affected by such
Encroachment use and occupancy, including securing the approval and consent to the
extent required 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 sanitary sewer lines 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. The City shall endeavor to provide
advance notice to Licensee of any planned installation, reinstallation, relocation, or repair
of any existing or future sanitary sewer line and to reasonably cooperate with Licensee in
identifying alternative methods of performing any of the foregoing in a manner least
impactful on the Encroachment and at the least cost to Licensee.
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
sanitary sewer line 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.
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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 Easement to a condition
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 Easement, 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
agrees to pay to City at the time this Agreement is requested an application fee of in the
sum of Five Hundred Dollars ($500.00).
7.
The term of this Agreement shall be for thirty (30) years, commencing on the
date this Agreement is executed by the City; provided, however, upon such expiration if
Licensee so requests City agrees to negotiate in good faith on a new agreement on
substantially the same terms and conditions. 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 ninety (90)
days, this Agreement shall be deemed terminated, unless such noncompliance is not
susceptible to cure within ninety (90) 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 ninety (90) days after written notice
specifying the same, or having so commenced, thereafter fails to proceed diligently and
with continuity to remedy same.
8.
It is further understood and agreed between the parties hereto that the Easement to
be used and encroached upon 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
Easement Encroachment Agreement-Commercial Page 3 of 13
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Property, consistent with the terms of the recorded easement whether presently
contemplated or not, that 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, 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.
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
$1,000,000
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. Licensee agrees to submit a similar
Easement Encroachment Agreement-Commercial Page 4 of 13
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Certificate of Insurance annually to the City on the anniversary date of the execution of
this Agreement.
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 Easement. All insurance coverage required herein shall include
coverage of all Licensee's contractors and subcontractors.
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 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
Easement Encroachment Agreement-Commercial Page 5 of 13
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have an interest. Licensee agrees that it will obtain all necessary permissions before
occupying such property.
16.
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.
Except as contemplated by the following sentence, 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.
Easement Encroachment Agreement-Commercial Page 6 of 13
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[SIGNATURES APPEAR ON FOLLOWING PAGE]
Easement Encroachment Agreement-Commercial Page 7 of 13
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City: Licensee:
CITY OF FORT WORTH ABRES III, LTD.
By: ABRES III GP, LLC, its General
Partner
By: By:
Randle Harwood, Director Name: Stephen N. Barnes
Plannin & Development Title: Manner
er
Date: 7 v Date:
�8F4 �
` 4 �L0.
ATTEST: pproved As To Form and Legality
* �r
City Sec Vary Trey Qualls
Assistant City Attorney
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 repo ing requirements.
Janie S. Morales
Development Manager
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX
Easement Encroachment Agreement-Commercial Page 8 of 13
Revised 12/2018
PAGE FOR CITY OF FORT1 ' OFFICE USE 1
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 3 day of
20 �9
Notary Public n and for the State of Texas
,rrr„
,��tiPpVPVA�,� JENNIFER LOUISE E2ERNACK
Notary Public,State of Texas
= ° Comm.Expires 03-01.2020
After recording return to: Notary ID 130561630
Planning & Development
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
OFFICIAL RECORD
CITYSECRETARY
Easement Encroachment Agreement-Commercial FT*QRTHe T
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
/L� C on this day personally appeared Stephen N. Barnes, Manager of the
General Partner (Title) 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 ABRES III, LTD., a
Texas limited partnership (entity type), and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this lXday o
20
MARCIA B RANSTETTER
>y :r MY Notary ID#12271034
•'�,;,;,;;+'in and for th �,;,;,;;+' Expires March 12,2021
''•••°f`��'
State of
L
RECORD
RETARYRTH, TX
Easement Encroachment Agreement-Commercial Page 10 of 13
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EXHIBIT A
Map of Easement and Encroachment
Easement Encroachment Agreement-Commercial Page 11 of 13
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Certificate of Insurance
Easement Encroachment Agreement-Commercial Page 12 of 13
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EXHIBIT C
Metes and Bounds Legal Description of the Property
Easement Encroachment Agreement-Commercial Page 13 of 13
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