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EASEMEIVT ENCROACHMENT AGREEMENT
THIS EASEMENT ENCROACHMENT AGREEMENT (this "Agreenrent") is made
and entered into by and between THE CITY OF FORT WORTH, a home rule
municipal corporation of Tarrant County, Texas (the "City"), acting by and through its
duly attthorized City Manager or its duly designated Assistant City Manager or Planning
and Development Director, and WEST DVSC REALTY, LLC, a Texas limited liability
company ("Grafitee"), owner of the properry located at 4631 Citylake Boulevard West in
Fort Worth, Tarrant County, Texas (the "Property").
RECITALS
WHEREA�, Gl•antee is the owner of the Property described as Block 2, Lot 3R
City View Addition, an addition to the City of Fort Worth, Tarl•ant County, Teaas, as
recorded in County Clerks Document No. D21231102 of the Real Proper�ty Records of
Tarrant County which is moi•e pai�ticularly desci•ibed on Exhibit "A" attached he��eto and
incorporated herein; and
WHEREAS, the City has a twenty (20} foot wide sanita�y sewer easement (the
"Easeyneitt") across the Pcopet�ty as dedicated by plat recorded in Cabinet A, Slide No.
3479 of the Real Property Recor•ds of Tarrant County attached to this Ag�•eement as
Exhibit "B"; and
WHEREAS, Grantee desires to construct/place and maintain a cetaining wall (the
"Retai�ing Wall") and which will, in part, encroach onto the City's Easement (the
"Enc��ouclantenf"), as shown on the survey, i�etaining wall depiction and site plan attached
hereto as Exhibit "C" and incorporated herein, and only to tlie extent shown thereon; and
WHEREAS, to set out the obligations of the pa1•ties with regards to the
Enc�•oachment, tl�e City and Grantee desire to enter into this Agreement under the tej•ms
and conditions as set forth herein.
NOW, THEREFORE, tl�e City and Grantee agree as follows:
AGREEMENT
1.
The City, in consideration of the payment by the Grantee of the fee set out below
and covenants and agreements hereinafter contained, to be kept and performed by the
Grantee, hereby agrees that Grantee may construct the Retaining Wall over a portion of
the Easement as described in and at the location shown on Exhibit C. Upon completion
of the Retaining Wall, Grantee ageees to be responsible for maintaining the Retaining
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EASEDIEIVT �NCROACHLIIENT AGREEl1IENT
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Wall within and above tL�e Easement. Grantee shall not expand or otherwise cause the
Encroachment to further infringe in or on the City's Easement beyond what is specifically
described in the exhibit(s) attached hereto.
2.
All consh•uction, maintenance and operation in connection with the Retaining
Wall shall comply and be performed in strict compliance with the applicable charter,
ordinances and codes of the City and in accordance with the directions of the Director of
the Transpoi�tation and Public Works Department or the Director of the Water
Department of City, or his duly atrthorized representative. Prior to the construction of the
Retaining Wall, Grantee sha(1 submit all plans and specifications to the applicable
Director or his duly authorized representative. Grantee shall not commence construction
of the Encroachment until such approval shall be indicated in writing by the Director.
However, such approval shall not relieve Grantee of responsibility and liability for
concept, design and computation in the preparation of such plans and specifications.
3.
Grantee agrees that City may enter and utilize the referenced areas at any time for
the purpose of insta(ling, repairing, replacing or maintaining improvements to its public
facilities or utilities necessa�y foi• the health, safety and welfare of the public.. City shall
bear no responsibility or• liability for any damage or disruption or other adverse
consequences resulting from the Encroachment installed by Grantee, 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 improvement owned
by, constructed by or on behalf of the public or at public expense is made mot�e costly by
virtue of the construction, maintenance or existence of the Retaining Wall, Grantee shall
pay to the City an additional amount equal to such additional cost as reasonably
determined by the Director of the Water Depai�tment or his duly authorized
representative.
4.
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
EASEbtENT ENCROACfi1�SENT AGREEDiENT
Page 2 of 8
the Encroachment, Grantee agrees to pay to City upon execution of this Agreement a fee
in the sum of Two Hundred and Seventy Five Dollars ($275.00). Upon e�ecution of this
Agreement and atmually thet•eafter, within �0 days after receiving an invoice therefor,
Licensee agrees to pay a fee in the amount of $.56 per square foot or linear foot of the
encroachment area.
5.
The term of this Agreement shall be for thirty (30) years, commencing on the date
this Agreement is executed by the City of Fort Worth. Provided however, this Agreement
shall terminate upon the non-compliance of any of the terms of this Agreement by
Grantee. The City shall notify the Grantee of the non-compliance and if not cured within
thirty (30) days, this Agreement shall be deemed terminated.
6.
It is further undet•stood and agreed upon between the parties hereto that the
Easement is held by City as tt•ustee for• the public; that the City exercises such powers
over the easement as have been delegated to it by the Constitution of the State of Texas or
by the Legislature; and that the City cannot contract away its duty and its legislative
power to control the Easement for the use and benefit of the publia lt is accordingly
agreed that if the governing body of the City may at any time during the term hereof
determine in its sole discretion to use or cause or permit the right of way to be used for
any other public ptu�pose permitted that does not preclude the use of the Encroachment,
that the parties agree to negotiate in good faith in or•der to accommodate the
Enct•oachment and the public purpose.
7.
GRA.NTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS
OFFICERS, AGENT5, SERVANTS, EMPLOYEES AND ELECTED OFFICIALS
FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS, AND GRANTEE
HEREBY P.SSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH
CLAIMS OR SUITS, FOR PROPERTY DAMAGE OR LOSS AND/OR
PER50NAL INJURY, INCLUDING DEATH, TO ANI' 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,
EASEDiENT ENCROACHbiENT AGREEDSENT Page 3 of 8
WHETHER OR NOT CAUSED IN WHOLE OR IN PART BY THE
NEGLIGENCE OF OFFICER�, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES, ELECTED OFFICIALS
OR INVITEES OF THE CITY. GItANTEE SHALL LIKEWISE ASSUME ALL
LIABILITY AND RESPONSIBILITY AND SHALL INDENINIFY CITY FOR
ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT
OF OR IN CONNECTION WITH TH� ENCROACHIVIENTS AND ANY AND
ALL ACTS OR OMISSIONS OF GI2ANTEE, ITS OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, C01�1TRr�CTORS, �UBCONTRACTORS,
GRANTEES, OR INVITEES.
;
While this Agreement is in effect, Grantee agrees to furnish City with a Certificate
of Insurance, naming City as cec•tificate 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 Eahibit "A". The amounts
of such insurance shall be not less than the fo(lowing:
$1,000,000 Commercial General Liability
with the understanding of and agreement by Grantee that such insurance amounts shall be
revised upward at City's option and that Grantee shall so revise such amounts
immediately fol(owing notice to Grantee of such requirement. Such insurance policy
shall provide that it cannot be canceled or amended without at least ten (10) days prior
written notice to the Building Officia( of the City of Fort Worth. A copy of such
Certificate of Insurance is attached as attached as Exhibit "D". Grantee agrees to submit
a similar Certificate of Insurance annually to City on the anniversaty date of the eYecution
of this Agreement.
Grantee agrees, binds and obligates itself, its successol•s 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 all encroachments and the cleaning and restoration of
the city streets. All insurance coverage required hei�ein shall include coverage of all
Grantees' contractors.
�ASEb1ENT ENCROACHAfENT AGREGDIENT Page 4 of 8
9.
Grantee 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 its
entirety in the deed recot�ds of Tarrant Counry, Texas. After being recorded, the original
shall be returned to the City Secretary of the City of Fort Worth, Texas.
10.
Grantee 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 said Encroachment.
11.
Grantee agrees to pay promptly when due all fees, taxes or rentals provided for by
this Agreement ot� by any federal, state or local statute, law or regulation.
12.
Grantee covenants and agrees that it shal( 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 Grantee 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, subcontractois, Grantees and invitees. The doctrine of
respondeat superior shall not apply as between City and Grantee, its officers, agents,
servants, employees, contractors and subcontractors, and nothing herein shall be
construed as creating a partnership or joint enterpt•ise between City and Grantee.
13.
Grantee agrees and acknowledges that this Agreement is solely for the purpose of
permitting Grantee to construct, maintain and locate the Encroachtnent 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.
EASED9ENT ENCROACHAICNT AGRGGDiENT
Page 5 of 8
14.
The parties agree that the duties and obligation contained Para�phs 3 and 4 shall
survive the termination of this Agreement.
15.
This Agreement is assignable, in whole or in pai�t, upon the following conditions,
all of which must be satisfied before any such assignment shall be valid and enforceable:
a. The assignment of this Agreement (the "AssignmenY') must be evidenced
by a recordable document;
b. The Assignment must contain an acknowledgment and agreement that all
obligations, covenants and/or conditions contained in the Agreement will
be assumed solely and completely by the assignee, and the contact name,
address, phone number, fax number and electric mail address of the
assignee;
c. The assignor must file the eYecuted Assignment in the Real Property
Reco�•ds of Tarrant County, Texas; and
d. The assignor must provide the City with a file-marked copy of the
Assignment.
After the assignor has complied with the requirements of Section 15(a-d), the
assignor will be re(eased fi•om al( liability hereundei•.
16.
Any cause of action for breach of this Agreement shall be bt•ought in Tarrant
County, Texas. This Agreement sha(1 be governed by the laws of the State of Texas.
17.
This agreement shall become a binding obligation upon the parties het•eto, their
successors and assigns, upon execution by all signatories hereto.
[SIGNATURE PAGE TO FOLLOWJ
EASEASENT ENCROACHhiGNT AGREEDTENT
I'._- � �
EXECUTED this�C��day of September, 2013.
City Grantee:
CITY OF FORT WORTH WEST DVSC REALTY, LLC
By: Lakehill Management, LLC,
its manager
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RANDLE HARWOOD
DIRECTOR
PLANNING & DEVELOP
ATTEST:
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COUNTY OF TARRANT
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Eric P. Berlin, Manager
As To Form and Legality
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City Attorney
BEFORE ME, the undersigned authority, a Nota�y Public in and for the State of
�n
Te�as, on this day personally appeared ,� ��� , known to me to be
the person whose name is subscribed to the foregoi instrument, and acknowledged to
me that he/she executed the same for the purposes and consideration thei•ein expi•essed, as
tlie act and deed of the City of Fort Wot�th, and in the capacity therein stated.
`� IVE �LJND R N�IY HAND AND SEAL OF OFFICE this , day of
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CASSAND2A f. FOREMAN ��
Notory Public, 5tate ot Texas ;
MyCommisslonExpires �;;
April 26, 2017 �:, N
EASEIIIENT ENCROACADIENT AGREEAtENT
Public in and for the State of Texas
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STATE OF TEXAS
STATE OF TEXAS
COUNTY OF TARRANT
§
§
BEFORE ME, the undei•signed authority, a Notaiy Public in and for the State of
TeYas, on this day pei•sonally appeared Eric P. Berlin, manager of Lakehiil
Management, LLC, a Texas limited liability company and tnanager of West DVSC,
LLC, a Texas limited liability company, 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 West
DVSC, LLC, and in the capacity ther•ein stated.
C'TTVF,N i TNi�ER MY HAND AND SEAL OF OFFICE this � day of
20�
OEBRA J. GOLLA
My Commission Expires
April 29, 2016
otaryJPublic yh and for the
of Teaas
EXHIBITS
Exhibit "A" — Legal Description of the Property
Exhibit "B" — Final Plat of Lots3R1 tl�orough CR 10, Block 1 and Lot 1, Block 100
Exhibit "C" — Su�•vey of the Property, Site Plan, Depiction of Encroachment
Exhibit "D" — Certificate of Insura�lce
EASEDiGNT ENCROACH6fENT AG2GE114ENT Page 8 of 8
EXHIBIT "A"
Legal Description of the Property
TRACT l:
Being all of Lot 3R8, Block 2 of CITYVIEW, an Addition to the City of Fort Wot�th,
Tarrant Counry, TeYas, according to the Plat thereof recorded in Cabinet A, Page 3479, of
the Plat Records of Tarrant County, Texas.
TRACT 2:
NON-EXCLUSIVE EASEMENT rights ct�eated pursuant to RECIPROCAL EASEMENT
AGREEMENT AND DECLARATION OF PROTECTNE COVENANTS, filed
12/18/1996,1•ecorded in Volume 12614, Page 1729, Real Property Records, Tarrant
County, Texas.
EASEbtENT ENCROACHt1fENT AGREC114ENT Exhibit c°A" Page 1 of 1
9510150v.2
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EXHIBIT "B"
Final Plat of Lots3R1 thorough CR10, Block 1 and Lot 1, Block 100
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EASEDiENT ENCROACHAfENT AGREGDiENT Exhibit "B"
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EASEDiENT ENCROACH�IENT [�GREEhtENT Exhibit "B" Page 2 of 2
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EXHIBIT "C"
Survey of Property, Site Plan Depiction of Encroachment
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EASEbiENT ENCROACHDIENT AGRCGMENT EXlllblt "C" Page 2 of 2
9J101$OV.2
EXHIBIT "D"
Certi�cate of Insurance
[To be attached]
EASEMENT ENCROACHbiENT t�GREEbtENT Exhibit "D" Page 1 of 1
9510150v.2
�-- --=� � CERTIFICATE OF LIABILITY INSURANCE I
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 CERTIPICATE 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. Astatement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).
PRODUCER
NAME:
AWESOME INSURANCE AGENCY INC A"o"N ,�t : 214 7 7 4- 4 2 5 0 (ac, No;
5999 Summerside Dr #108 nooRess: alex@aiai.us
Dallas, Z'X 75252 INSURER(S) AFFORDING COVERAGE
INSURED WEST DVSC REALTY, LLC
3906 Lemmon Ave. Suite 100
Dallas, TX 75219
(214) 526-6564
(214)676-7459
GEN'l AGGREGATE LIMIT APPLIES PER:
X I POLICY � JECT CI LOC
INSURER A:
INSURER B:
INSURER C:
INSURER D:
INSURER E:
INSURER F:
COVERAGES CERTIFICATENUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSl1RANCE 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. `
VSR TYPE OFINSURANCE ADDL SUaR ��� � � ��
LTR INSD wvo POLICYNUMBER (MM/DD/YYW) (MM/DD/Yl'YY)� LIMITS
COMMERCIAL GENER L
�( A UABILITY �� � EACH OCCURRENCE 5 1 O O O -O O�O
ICLAIMS-MADE CI OCCUR PREMISES (Ea occurrence) � 10 �, 0 � �
0
AUTOMOBILE LIABILITY
SCHEDULED
AUTOS
NON-OWNED
AUTOS
ANYAUTO
ALIOWNED
AUTOS
HIRED AUTOS
UMBRELLA 11AB
EXCESS �IAB
OCCUR
CLAIMS-MADE
DATE(MM/DD/YYYY)
9/20/2013
(214)774-4255
NAIC #
� 5.000
5 1,000,000
� 2, 000, 00=0
5
S
$
5
$
5
S
5
$
. ._._ ._ ...........
$
� DED � � RETENTION $
WORKERS COMPENSATION
AND EMPLOYERS' LIABIIiTY Y/ N
ANY PROPRIETOR/PARTNERlEXECUTIVE ❑ N �A
OFF�CERIMEMBER EXCLUDED?
(Mandatory in NH)
If yes, describe u�der
5
$
5
BODILY INJURY (Per person)
BODILY INJURY (Per accideot)
EACH OCCURRENCE
AGGREGATE
El. EACH ACCIDENT
. . � E.L. DISEASE- EAEMPLOYEE
� E.L. DISEASE- POLICY LIMIT
i,p
DESCRIPTION OF OPERATIONS /LOCATIONS /VEHICLES (ACORD 101,AdditionalRemarksSchedule,maybeattachedif morespaceisrequired)
CERTIFICATE HOLDER WILL RECEIVE 30 DAYS NOTICE OF CANCELLATION.
CERTIFICATE HOLDER
THE CITY OF FORT WORTH
DEPARTMENT OF DEVELOPMENT
1000 THROCKMORTON STREET
FORT WORTH, TX 76102
CANCELLATION
tl (;
; �l
SHOULD ANY OF 7HE ABOVE DESCRBED POLICIES BE CANCELLED BEFORE" ""
THE EXPIRATION DATE' THEREOF, NOTICE WILL BE DELNERED IN,-..-.,..,
ACCORDANCE WITH THE POLICY PROVISIONS.
At1THORIZED REPRESENTATIVE � ,
ACORD25 (2013/04)
OO 1988-2013 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
( MED EXP(Anyoneperson)
1343404-A 10�01�13 1��0�.�14 pERSONAL&ADVINJURY
� GENERAL AGGREGATE
� PRODUCTS - COMP/OP AGG
4: