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HomeMy WebLinkAboutContract 55056 Date Received: 12/21/2020 City Secretary Time Received: 10:32 AM Number:55056 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, Assistant City Manager, or Development Services Director, and Lennar Homes of Texas Land and Construction, LTD, a limited partnership ("Licensee"), owner of the real property located at Southeast corner of McPherson Blvd. and Summer Creek Drive, Fort Worth, Texas 76123 ("Property"), acting by and through its duly authorized Community Development Manager. 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 drainage easement (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 constructing a retaining wall (the "Encroachment"). Upon completion of the Encroachment, Licensee OFFICIAL RECORD Easement Encroachment Agreement-Commercial P Revi CITY SECRETARY FT. WORTH, TX agrees to be responsible for maintaining the Encroachment within 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 exhibits) 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. Easement Encroachment Agreement-Commercial Page 2 of 12 Revised 4/2020 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. 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. 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 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. Easement Encroachment Agreement-Commercial Page 3 of 12 Revised 4/2020 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 HIND 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 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 Easement Encroachment Agreement-Commercial Page 4 of 12 Revised 4/2020 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 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 Revised 4/2020 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. Easement Encroachment Agreement-Commercial Page 6 of 12 Revised 4/2020 City: Licensee: CITY OF FORT WORTH LENNAR HOMES OF TEXAS LAND CONSTRUCTIONS, LTD b- fla��e-CG By:DJ Nai yell(Dec 11,2020 09:49 CST) By: DJ Harrell, Director Name:Jennifer Elle Development Services Department Title: Authorized Agent Date: Date: b-p4�a� a , � FORr �a F°° °°lyoad� a C odd �vo o=� ° ° ATTEST: Oaf° ° �`�� Approved As To Form and Legality fvr aNtzA4k .A/ or Ronald P.Gonzales(Dec 11,2020 07-20 CST) Mary Kayser,City Secretary FWBC Sec. 3210 City Secretary's Office Matthew A. Murray,Assistant City Attorney City Secretary's Office Contract Compliance Specialist: By signing I acknowledge that I am the person Responsible for the monitoring and administration Of this contract, including ensuring all performance e�rsr�fe`Eae`ha�lrohbe%aL And reporting requirements. .Lrrif<r E.•.ema:l:Jn bchail cf;Li.:l E,.920 uE:SS CSTI Janie Morales Development Manager Easement Encroachment Agreement-Commercial Pag Revised OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Me= e ' WTs 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 D.J. Harrell, 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. I ith day of December . 20 20 . Dig itaIlysigned by Jennifer L Jennifer L Ezernack Ezernack Date:2020.12.15 13:14:32-06'00' Notary Public in and for the State of Texas o�P5yP�e JENNIFER L. EZERNACK a Notary Public + +� STATE OF TEXAS GV P Notary I.D. 130561630 9�OF My Comm. Exp. Mar. 1,2024 After recording return to: Development Services Department Development Coordination Office 200 Texas Street Fort Worth, Texas 76102 OFFICIAL RECORD Easement Encroachment Agreement-Commercial F CITY SECRETARY Rev FT. WORTH, TX STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority on this day personally appeared known to me to be the person whose name is subscribed to the foregoing instrument and � acknowledged to me that the same is the act of and that he executed the same as its ��'�t1Z.2ts and as the act of such and for the purposes and consideration expressed in the foregoing instrumel�t, Es Notary Public, State of Texas LAURA LVNN SALGADO Notary ID* 125169119 My Commission Expires January 18,2021 RETAINING WALL MAINTENANCE AGREEMENT Rev.412007 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX EXHIBIT A Map of Easement and Encroachment Easement Encroachment Agreement-Commercial Page 10 of 12 Revised 4/2020 LOT 1, BLOCK 1 LOT 3, BLOCK 1 CHISHOLM TRAIL RANCH CHISHOLM TRAIL RANCH INSTRUMENT NUMBER INSTRUMENT NUMBER D218073631 D218073631 OPRTCT ! OPRTCT ---L-60 -51a — — QQ81 58 57 56 55 54 53 52 51 50 49 LOT iX, BLOCK K o CHISHOLM TRAIL RANI Y INSTRUMENT NUMBEF B2 D216078366 0 PAINT BRUSH TRAIL CPRTCT w - 63 1 ®28 0 45 46 47 48 o Q 64 2 27 L TRAIL MAP DRIVE 3 26 44 LEA _o 1 4 25 43 ` a 2 5 24 42 PROPERTY � I 3 0 BOUNDARY / I 3 _w 6 23 ¢ ac: w E 4 a 7 22 y O 0 5 8 21 LL QLu a 6 9 20 co E LOT 23X, 9L0 K K c w CHISHOLM TRAIL RANCH U Li7 10 19 INSTRUMENT NUMBER o % D218056554 1 I w 8 11 18 OPRTCT �1 c w � 9 12 17 LL� x 10 13 16 u Q t1 14 O 15 \ PROPOSED N BERRY DRIVE RETAINING WALL AND DRAINAGE EASEMENT fV / c rn a� SCALE: 1"= 200' 0 ci 0 200 0 C'4 Q PAPS-DAWSON U ENGINEERS CHISHOLM TRAIL RANCH SITE PLAN j DALLAS I SAN ANTONIO I AUSTIN I HOUSTON I FORT WORTH 10/8/2020 5810 TENNYSON PKWY, STE 425 1 PLANO, TX 75024 1 214.420.8494 TEXAS BOARD OF PROFESSIONAL ENGINEERS FIRM REGISTRATION#470 N lL THIS DOCUMENT HAS BEEN PRODUCED FROM MATERIAL THAT WAS STORED AND/OR TRANSMITTED ELECTRONICALLY AND MAY HAVE BEEN INADVERTENTLY ALTERED. 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A 9 PLAN: STANDARD RW NOTES AND DETAILS (R]CWOSON. 10 E.ARM"ROAD,SUITE 109 c� SUMMER CREEK DR.&TRAIL MAP OR NE TX 75061 214-741-369 EXHIBIT B Certificate of Insurance Easement Encroachment Agreement-Commercial Page 1 1 of 12 Revised 4/2020 DATE(MM/DD/YYYY) ACOR" CERTIFICATE OF LIABILITY INSURANCE Ilh. � 1 12/2/2020 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(ies) must 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). PRODUCER CONTACT NAME: KelleyGubernick Gore Lieske&Associates Insurance Brokers, LP PHONE FAx 15901 Red Hill Ave Suite 100 A/C No Ext: 714-505-7000 vc No:714-573-1770 Tustin CA 92780 AoDRRss: kgubernick@gorelieske.com INSURERS AFFORDING COVERAGE NAIC# INSURER A:OLD REPUBLIC INS CO 24147 INSURED LENNA-1 INSURER B:RLI INS CO 13056 Lennar Corporation and all its Subsidiaries 15131 Alton Parkway, Suite 345 INSURER C: Irvine, CA 92618 INSURERD: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 1358827618 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. INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR D WVD POLICY NUMBER MM/DD/YYYY MM/DD/YYYY A X COMMERCIAL GENERAL LIABILITY Y Y MWZY31414920 9/1/2020 9/1/2021 EACH OCCURRENCE $1,000,000 CLAIMS-MADE � OCCUR DAMAGE TO RENTED PREMISES Ea occurrence $2,000,000 MED EXP(Any one person) $N/A PERSONAL&ADV INJURY $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 POLICY JECTPRO ❑ LOC PRODUCTS-COMP/OP AGG $2,000,000 X PRO- OTHER: $ B AUTOMOBILE LIABILITY CAP9505845 9/1/2020 9/1/2021 COMBINED SINGLE LIMIT $ Ea accident 1 000 000 X ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS AUTOS X X NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS AUTOS Per accident UMBRELLA LIAR OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED I I RETENTION$ $ A WORKERS COMPENSATION MWC31414820 9/1/2020 9/1/2021 X PER OTH- AND EMPLOYERS'LIABILITY Y/N STATUTE ER ANY PROPRIETOR/PARTNEWEXECUTIVE ❑ E.L.EACH ACCIDENT $2,000,000 OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYE $2,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT 1 $2,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Re:Contractor Registration City of Fart Worth,its Officers and Employees are named as additional insured on the General Liability per attached CG 20 10 04 13 and CG 20 37 04 13 as required by written contract subject to the terms and conditions of the policy.Waiver of Subrogation applies to the General Liability per attached CG 24 04 05 09. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Fort Worth ACCORDANCE WITH THE POLICY PROVISIONS. Planning &Development—CFA Office PN20-00137 200 Texas Street AUTHORIZED REPRESENTATIVE Fort Worth TX 76102 ` . ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD EXHIBIT C Metes and Bounds or Location Description of the Property Being a tract of land situated in the J.J. Albirado Survey,Abstract Number 4, City of Fort North, Tarrant County, Texas and being all of that certain called 13.37 acre tract of land described in deed to Lennar Homes of Texas Land and Construction, LTD., as recorded in County Clerk's File Number D220064661, Official Public Records, Tarrant County, Texas Easement Encroachment Agreement-Commercial Page 12 of 12 Revised 412020