HomeMy WebLinkAboutContract 42707CITY SECRETARY
CONTRACT NO . 4 ;2] Q]
EASEMENT ENCROACHMENT LICENSE AGREEMENT
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 or duly designated Assistant City
Manager, and 3209 N. MAIN STREET JOINT VENTURE, a Texas joint venture,
hereinafter referred to as "Licensee", owner of the property located at (street address)
("Property").
RECITALS
WHEREAS , Licensee is the current owner of certain real property described as
Lots 5, 6, 7 , 8 and the South I foot of Lot 9 , Block 104, of the M.G. Ellis Addition, an
Addition to the City of Fort Worth, Tarrant County, Tex as , according to the Plat thereof
recorded in Volume 63, Page 19, Map Records of Tarrant County, Texas , SAVE AND
EXCEPT, the East 10 feet thereof conveyed to the City of Fort Worth for street right-of-
way, commonly known as 3209 N. Main Street, Fort Worth, TX 76106 ("Property"),
together with that one-story commercial building constructed by Licensee 's predecessors
in title and containing approx. 11 ,478 SF (the "Building"); and
WHEREAS, Licensee discovered on application for re-platting of the Property
that the City has an existing sanitary sewer line and related facilities and an underground
drainage line and related facilities (the "Sewer and Drainage Facilities") in , on or under
those defined areas of the Property as shown on the maps attached to this Agreement as
Exhibit "A" and incorporated herein that the Building was constructed over the Sewer
and Drainage Facilities such that a portion of the Building (the "Encroachment") does
encroach onto the area where the City's Sewer and Drainage Facilities are located as
shown on the attached survey and only to the extent shown thereon ; and
WHEREAS, Licensee has granted the City a Permanent Drainage Facility
Easement and Permanent Sewer Facility Easement (the "Utility Easements") both of even
date herewith , recorded in the Official Public Records of Tarrant County, Texas,
reference to which is made for all purposes; and
WHEREAS, to accommodate the needs of the Licensee, the City will approve
allowing 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 the
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
12 -20 -11 AQP:QO I N
Licensee, hereby grants penmss1on to the Licensee to encroach upon and occupy a
portion of the City 's Utility Easements as described in the Utility Easements and at the
location shown Exhibit A. Licensee shall not expand or otherwise cause the
Encroachment to further infringe in or on the City's Utility Easements beyond what is
specifically described in the exhibit(s) attached hereto.
2 .
All construction, maintenance and operation in connection with such Encroachment, use
and occupancy shall comply and be performed in strict compliance with the Charter,
Ordinance and Codes of the City and in accordance with the directions of the Director of
the Transportation and Public Works Department of City , or his duly authorized
representative. Prior to any new construction in the Building in the area of the
Encroachment, Licensee shall submit all plans and specifications to the Director or his
duly authorized representative . Licensee shall not commence new construction in the
Building in the area of the Encroachment until such approval shall be indicated in writing
by the Director. 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 agrees that 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 for any
other public purpose. City shall bear no responsibility or liability for any damage or
disruption or other adverse consequences resulting from of Encroachment installed by
Licensee, but City will make reasonable efforts to minimize such damage . Should it
become necessary to remove the Encroachment to install , repair, replace or maintain
improvements to City public facilities or utilities in the Easement, the Licensee shall
remove the those portions of the Building that constitute the Encroachment at the
Licensee 's expense. The City shall furnish the Licensee with notice if removal of the
Encroachment is deemed necessary by the Transportation and Public Works Department.
2
Licensee agrees that upon request of City, and within 30 days from the date of such
request, to relocate the Encroachment away from the Easement and to restore the
Easement to its original condition all at the sole cost and expense of Licensee.
4 .
The Licensee further agrees that City shall have the absolute right at its discretion to
terminate this license or refuse to allow the Licensee to continue to have the
Encroachment over, under or across the Easement if the City determines that the
Easement is being substantially damaged by the Encroachment, or that the Encroachment
otherwise places an undue burden on the operation of the municipal utility(ies) system or
in the event the Licensee fails to comply with the provisions of this Agreement. City
shall furnish Licensee with notice requiring the removal in a time period as is reasonable
under the circumstances. After receipt of such notice, the Licensee shall thereafter
immediately remove the Encroachment and restore the Easement to the same condition as
existed prior to the installation of the Encroachment. In the event the Licensee fails to
promptly remove the Encroachment and restore the Easement within the time required by
the notice , the City may remove the Encroachment and restore the Easement and assess a
lien on the Property for the costs expended by the City to remove the Encroachment.
5 .
Licensee agrees to pay to City at the time this Agreement is executed a fee in the sum of
Two Hundred Seventy Five Dollars ($275 .00) to pay necessary fees to record this
Agreement in its entirety in the deed records of Tarrant County.
3
6 .
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,
ARISING OUT OF OR IN CONNECTION WITH, THE CONSTRUCTION,
MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF SAID
ENCROACHMENTS 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.
7.
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 hav e 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 .
8.
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 described Utility Easements and in not a conveyance of any right, title or interest in or
to the Easement.
4
9.
In any action brought by the City for the enforcement of the obligations of the Licensee,
City shall be entitled to recover interest and reasonable attorney's fees.
10.
The parties agree that the duties and obligation contained paragraphs 3 and 4 shall
survive the termination of this Agreement.
11.
Licensee covenants and agrees that it will not assign all or any of its rights , privileges or
duties under this contract without the written approval of City , and any attempted
assignment without such written approval should be void.
12 .
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 .
13.
This agreement shall be binding upon the parties hereto, their successors and
assigns .
EXECUTED this ~ day of ().e_ C~h'\ be_,, , 2011.
[Signatures Begin on Following Page]
5
CITY OF FORT WORTH
By: 5-m,: +C"-
Fernando Costa
Its: Asst. City Manger
ATTEST : -<:,,.(),~o;i~'llQ~ Appro v ed As To Form and Legality
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Contr ac t Auth ori z a tioa
STATEOFTEXAS ~=~·~-_ll_~_/6.-~l~I----------
COUNTY OF TARif»fr -
BEFORE ME , the undersigned authority , a Notary Public in and for the State of
Texas , on this day personally appeared kr-f1QO do Co::n:c_, known to me to be
the person whose name is subscribed to the foregoing instrument, and acknowledged to
me that he /she 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 ;q lUc
-1:eum/Je.1?_ , 2011.
day of
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
6
for the State of Texas
' !
' '
LICENSEE
3209 N. MAIN STREET JOINT VENTURE,
a Texas joint venture
By:
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_JACOB G. JORDAN, the Venture Manager of
3209 N . MAIN STREET JOINT VENTURE, a Texas joint venture, 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 , and in
the capacity therein stated .
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ~t) ¥-· ,2011.
7
day of
EXHIBIT A
Location of Encroachment
8
EXHIBIT A
Location of Encroachment
Parts of Lots 5 and 6 , Block 105, M.G . ELLIS ADDITION ,
to the City of Fort Worth at the locations shown on the attached mark-ups of that
Land Title Survey of Lots 5-9 , Block 105, M.G . ELLIS ADDITION,
prepared by David Petree, RPLS 1890,
dated August 25 , 2011 (last revised September 16 , 2011).
8
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. LISS ADDITION
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lt~ec:1Profeaoono!Lond~No.11!190
RMS(l) SCPTOl8CR 11 , 2011 ADO£O 2 PflOPOSCO £AS(M(HTS
LAND TITLE SUM:Y
0.6139 ACRES OF I.AND
!P ART LOTS 5°9 BLOCK 105
M.8. ELLIS ADDITION!
CITY OF FOIIT WOIITII, TANIAIIT COWITY, iDAII
Q,\T[: N..IOUST2S,2011
SCM.L: 1· • 20'
M&CReview Page 1 of 1
Official site of the City of Fort Worth, Texas
CITY COUNCIL AGENDA FORT fo TH
~
COUNCIL ACTJON ; ~Ott ffff~1
DATE: 1111512011 REFERENCE
NO.:
063209 NORTH MAIN JOI NT
**C-25266 LOG NAME: VENTURE EASEMENT
ENCROACHMENT
CODE: C TYPE: PUBLIC
CONSENT HEARING: NO
SUSJEC-T: Autl1or·ize Execution of an Easement Encroachment Agreement with 3·209 North Main
Street Joini Venture for the Construcfi'on of a Buildi'ng Which wHI Encroach Over the City's
Fifteen Foot Sanitary Sewer Easement at 3209 North Main Street (COUNCIL DISTRICT
2)
RE~COMMENDATJON:
It is recommended that the City Council authorize the execution of an easement encroachment
agreement with 3209 North Main Street Joint Venture for the construction of a building which will
encroach over the City's 15 foot sanitary sewer easement at 3209 North' Maf n.
DISCUSSION:
3·20'9' North Main Street Joint Venture has requested use of the publi c right~of-way for the
const ruction of a building which will encroach over the City's 1· 5 foot sanitary sewer easement at 3'209
North Main Street.
Staff from both the Transportation and Public Works and Water Departments have reviewed' tfM
encroachment request and recommend City Council approval.
The fee for the privilege granted by this Agreement will be $275 .00 . The term of the Agreement will
be 30 years.
The property is in COUNCIL DISTRICT 2 .
FISCAL INFORMATION/CERTIFICATION:
The Financlal' Manag·ement Services Director certifies that the Planning and Development
Department is responsible for the collection and deposit of funds due to the City.
TO Fund/Account/Centers
GG01 4-2123'2 0062000' $275.00
Sultr:tti'ttedfor· City Manager··s, Office by:
Originating Department Head:
Additi~>nal lnf'Qrmafion Contact:
AITACHMENTS
3209 N Main Exhibit Apdf
FROM Fund/Atc.ount/Ceotel'S
Femando Costa (6122)
Randle Harwood (6101)
David Schroeder (2239)
htto://aoos.cfwnet.org/council oacket/mc review.aso?ID=16075&councildate=l l/15/201 l 12/12/2011