HomeMy WebLinkAboutContract 55177 Date Received:01/20/2021 _ City Secretary
Time Received: 8:30 AM Numbe r: 55177
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 Palladium Fain Street Ltd., a Texas limited
partnership ("Licensee"),owner or under contract to be the owner of the real property
located at 4001 Fain Street,Fort Worth, Texas 76111 ("Property"), acting by and through
its duly authorized General Partner.
RECITALS
WHEREAS, Licensee is or is under contract to be 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 G" and
incorporated herein for all purposes; and
WHEREAS, the City has a sewereasement (the "Easement")in the Property as
shown on the map attached to this Agreement as "Exhibits A-E," which are 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 storm line,paving and
fencing (collectively, the "Encroachment Facility"). Upon completion of the
Encroachment Facility, Licensee agrees to be responsible for maintaining the
Encroachment Facility within the Easement. Licensee shall not expand or otherwise cause
Easement Encroachment Agreement -Cornmercial Pag OFFICIAL RECORD
4/2020 CITY SECRETARY
FT.WORTH, TX
the Encroachment Facility /to 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
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 any necessary engineering
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 sewer improvements within the Easement affected
by the Encroachment Facility. In the event that the City determines that any installation,
reinstallation, relocation, or repair within the Easement of any existing or future sewer
improvements owned by or constructed by or on behalf of the public at public expense
(which is not to be reimbursed by a third party) would increase costs by virtue of the
construction, maintenance, or existence of the Encroachment Facility, the City shall give
Licensee a minimum of sixty (60) days' notice and the opportunity to review plans for
such sewer improvements. If, after review of such plans by Licensee and discussion of
alternatives presented by Licensee to reduce such additional costs, the Director of
Transportation and Public Works or the Director of the Water Department, or their duly
authorized representative, reasonably determines that such additional costs are necessary,
License shall pay to the City an amount equal to such additional cost, provided (i) such
additional amount shall not exceed prevailing industry standards, and (ii) the City shall
make a good faith effort to minimize such costs.
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 Facility
installed by Licensee, but the City will make reasonable efforts to :*pork with Licensee and
minimize such disruption and damage.
Easement Encroachment Agreement -Commercial Page 2 of 14
Revised
4/2020
5.
Upon termination of this Agreement, Licensee shall, at no expense to the City,
remove or abandon-in-place the Encroachment Facility 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 or abandon-in-place the Encroachment
Facility as directed and restore the Easement, Licensee hereby gives the City permission
to remove the Encroachment Facility 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 forty (40)years, commencing on the date
this Agreement is executed by the City. In the event Licensee shall fail to comply with the
terms and conditions contained in this Agreement for a period of thirty (30) days after
the City notifies Licensee of such default, if Licensee provides City with evidence that
Licensee is diligently pursuing a cure of the alleged default and same is not susceptible
of cure within the thirty (30) day period, Licensee shall have a total of ninety (90) days
within which to cure same. If not cured within such ninety (90) day period, then City
may at its election inunediately terminate this Agreement, and upon such termination all
of Licensee's rights hereunder shall cease and come to an end.
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
Easement Encroachment Agreement -Commercial Page 3 of 14
Revised
4/2020
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.
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
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 F" 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 restoration
Easement Encroachment Agreement - Commercial Page 4 of 14
Revised
4/2020
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 Facility 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 tile 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 Facility 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.
Easement Encroachment Agreement -Commercial Page 5 of 14
Revised
4/2020
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.
In the event Palladium Fain Street, Ltd., does not acquire the Property, Licensee
shall notify the City in writing that it will not acquire the Property and this Agreement shall
terminate and be of no further force or effect.A memorandum of such written notification
may be filed by the City if it elects to do so to reflect the termination of this agreement in
the real property records of Tarrant County, Texas.
19.
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. However, in the
event that 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 execution and delivery to
the City of an assignment of the Agreement to the new owner of the Property. 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 any assignment of this Agreement shall be effective as to City unless and
until written notice of such foreclosure or assignment is provided to City.
20.
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.
21.
This Agreement shall be binding upon the parties hereto and their successors and
assigns.
Easement Encroachment Agreement-Commercial Page 6 of 14
Revised
4/2020
22.
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 7 of 14
Revised
4/2020
City: Licensee:
CITY OF FORT WORTH PALLADIUM FAIN STREET, LTD., a
Texas limited partnership
By:
�L
By:DJ Harrell 15,202116:59 CST) By: —
DJ Harrell, Director Name: Thomas E. Huth
Development Services Department Title: Authorized Representative
Date: Date:
�,o4vnnn��
a''o F°FUR 00
° a
ATTEST: 0, o oa=� Approved As To Form and Legality
Ronald001 *Ay
�2000
P.Gonzales(�z� �dllflCU.P.� ..l�C,z�ezv ttc�
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
�7alrle, ltllmaler And reporting requirements.
Janie Scarlett Morales(Jan 15,202116:41 CST)
Janie Morales
Development Manager
Easement Encroachment Agreement -Commercial pa OFFICIAL RECORD
4/2020 CITY SECRETARY
FT.WORTH, TX
11111
� '
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 the 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 15th day of
J an any 120 21 .
LAURIE Digitally signed by LAURIE
PEQUENO LEWIS
Date:2021.01.1517:21:26 gPRYPU6 LAURIE PEQUENO LEWIS
PEQUENO LEWIS z�O� Notary Pubic
-06'00' • � + STATE OF TEXAS
Notary Public in and for the State of Texas q,�oF P 952
Notary I.D. 1 Dec. 1
My Comm.Exp. Dec. 10,2023
After recording return to:
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
Easement Encroachment Agreement -Commercial pa OFFICIAL RECORD
4/2020 CITY SECRETARY
FT.WORTH, TX
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 Thomas E.Huth,Authorized Representative 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 Palladium Fain Street,Ltd., a Texas limited
partnership, and in the capacity therein stated.
Kin
MY HAND AND SEAL OF OFFICE this 15th day of
Jan y
State of Texas
,�p,PV PUe,, A V I S FRANC ES CHAISS0N
? `c s Notary Public, State of Texas
SN�• •P� Comm. Ex ire, 03-23-2024
9r'•...•+. P
Notary ID 132414136
Easement Encroachment Agreement-Commercial pag OFFICIAL RECORD
4/2020 CITY SECRETARY
FT.WORTH, TX
EXHIBITS A -E
Map of Easement and Encroachment
Easement Encroachment Agreement-Commercial Page 1 1 of 14
Revised
4/2020
Sta. 0+43.33 SD Line B -Z
Ex. 8" SS Crossing N&Y
E 24"=548.81
FL Ex. 8" SS 545.89
$S
ITUTILITY EASEMENT
VOL.8103,PG.1816&
VO
L.8 188.PG.719,O.P.R.T,C.T
0 40 100
Or
GRAPHIC SCALE
4
Lp TE Ej'-TRI
�SERVICE Co.EASEMENT
VOL.8112 PG 263
D.R.T.C.T.
ROBERT GARRIOTT
VOL.16605,PG.269
O.P.R.T.C.T. SC,
tp
cl
_ SS - SS
lk,
SS
----------- S
JFAIN SIRE
IGO
�0o
-54
CJ REAL ES T Lec
SA 1 INST.NO 1 8224
P.R .
ENCROACHMENT EXHIBIT A
PALLADIUM FAIN STREET
JANUARY 8,2021 CROSS
565 _
--- Q m m I I
m m
_ cm
T d T
cn u . LD � J
V U)
O _ c U)
LC)0 � U O NU) X
560 't Cn N Co ° �o co
+ + N +
00 �z
O r Co Cf) 6 't
O O NX
(n N In LLJ (n 0
� r r
Ex. Grade n n
555 N @ CL of Pipe U" `n
Prop. Grade —
@ CI_ of Pipe
100—Yr. HGL
550 _ n MCP
— @ 4' RC LF 0.25 146 LF
2
2 g4 43
0
Controlled Low Strength
545 Material CLSM r Fort
Worth Water Installation
Manual Section 6. .4.2
540
00 -� cc Co
U)I� OJ L d7 Orr)
I� r co DJ N ai
d L 00
Ln Ln N T) o u)
CL a_ d o d ud-, a a-
u (-) u u
Cr m mC() m V) n �
� Co
N N N W N Da N
535 JJ
0+ 00 1 +00
ENCROACHMENT EXHIBIT B
PALLADIUM PAIN STREET
JANUARY H,2021
H: 1"=40' 1 V: 1"=4' /�D �°�° ENGFNEEFJNG
CROSS C®NSULTANTS,$nc.
—h \ Prop. Fence
1 �
\ J
•
1 STORY ."„sl•\s 1 S
SlT1C0 40 100
BUILDING
FF=556.48 ?s SS
GRAPHIC SCALE
554—
'33"'E' �' �. \ Prop. Fence Crossing \
L C
EE CRE DI ION
CA NE T.
4.
/ 1
\\ I I
\ Prop. 4" 4,000 psi Sidewalk \ /
LOT 1-B,BL 1 \\
\ GREEN ACRES DDIDITION • \ LL
\ VOL.388-182, 0 Q
P.R.T:C.T. \\ I I
WNAGEE SEMEN
IL.3353 PG. 09 \
O.R.T'C T \\
ul
\ L071°A �' Fence
OCK ass
\ GREEN A ES ADDITION ,
FLe:a'RBcsJe.w N) @@/ \ VO 88-182,PG,III \i L 8"SS
FtB'z6'RBC-5J90E )
P.R.T.C.T.
\ \ a SSA
°O \o
ENCROACHMENT EXHIBIT C
Fence and Paving Encroachment
PALLADIUM FAIN STREET
SLPTL'^MI3LR 29,2020
CROSS �� �Imo.
1
1 0 40 100
St a. 1+99.91 SD Line C
Ex. 8" SS Crossing Ex. 8" SS Crossing GRAPHIC=a SCALE
� I r'
EL 8" PVC 550.33 20.9e' FL 12" PVC 548.13 HtKMINIAo'K.tSPARZ,
L Ex. 8" SS 541.66 ' Ex. 8" SS 541.26 INST.NO.D19713061(
O.P.R.T.C.T.
UTILITY EASEMENT
)L.8103,19,18168 = 8'
I88,PG.719,O.P.R T.C.T. J
f
aLn .I
ll ,.00' o
L554
\ m
\\ I o� Q
'TE S EL CTRIJ 7 '9
SERVICE CO.EASEMENT
VOL.8112 PG263
D.R.T.C.T.
UI
\ \ I I N \
I LOT 1,BLOCK
\ \ I a JONES CLOCK
VOL.388-D,PG.383
P.R.T.C.T.
0,0
709
\�
\ C1 - — Contractor to Field Verify — —
_��'J�� Ex. SS Line Dep JI & Nutiry_—
SS Engineer of Any Conflicts
SS Ex. 8" WL Crossing P ,� o `a 1'"
3.. SS 55 FL 18" RCP 540.72 w� �a
FAIN FL Ex. 8 WL 545.25 .,a� —
Q E-8"SS —
�6.R OF VSA��o''a. •o -
.'.as 4 <
'pa .:a
�� o
0 i o
ENCROACHMENT EXHIBIT D
1 S", 12" & S" Storm Crossings - Plan
PA_I.LADIUM FAIN STREET
SLPTLMBLR 29,2020
CROSS ONE,�G
560 SD LINE D 560
p p 6 p
X v U) o to o
O W rn Q) r Q) O O
O M U Ln M C7 M �t
O 0
555 + CJ z � 555
+ 1 + + + t
Zs a Ln
�.-,(O 00 6 � U � to N U
p C N d O
N U 1— Y) W (n.0 (n e U]U V7
550 550
Ex. Grade
CL of Pipe
Prop. Grade
@ CL of Pipe
545 G 545
2
540 540
N ^� a
0,4
4 t
Ln Ln Ln J Ln Ln Ln
CL b CL 3: CL Cl_ a-
UU U U U u
X El
530_ L� L, U L, 530
0+00 1 +00
ENCROACHMENT EXHIBIT E
18" Storm Crossing - Profile
PALLADIUM PAIN STREET
S1?PTF.MBE R 29,2020
I I: 7"=40' 1 V: ]"=4' ENGINEERING
CROSS CONSULTANJ`S,Inr
EXHIBIT F
Certificate of Insurance
Easement Encroachment Agreement-Commercial Page 12 of 14
Revised
4/2020
EXHIBIT G
Lot 2, Block 1, GREEN ACRES ADDITION NO. 2, an addition to the City of Fort
Worth, according to the Map or Plat thereof recorded in Clerk's File No. D221011087,
Plat Records of Tarrant County, Texas
Easement Encroachment Agreement-Commercial Page 12 of 12
Revised 4/2020