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HomeMy WebLinkAboutContract 55685Date Received: 05/07/21 Time Received: 12:00 pm City Secretary Number: 55685 PUBLIC PROPERTY EASEMENT ENCROACHMENT LICENSE AGREEMENT TIER TI THIS AGREEMENT is made and entered 'mto by and between THE CITY OF FORT WORTH, a home rule municipal carporation of Tarrant County, Texas ("City"}, acting by and through its duly authorized City Manager, Assistant City Manager, or Director of the Development Services Department, and CRP/CHI DOWNING OWNER, L.P., a(n) Delaware litnited partnership {`Z,icensee"), acting by and through a duly authorized Vice President. RECITALS WHEREAS, Licensee is the owner of the real property located at 2551 Downing Drive, Fort Worth, Texas 76106 ("Property"), bemg more particularly descrbed in the attached Exhibit "A" which is mcorporated herem for all purposes; and WHEREAS, the City owns a sanitaiy sewereasement (the "Public Property") adjacent to the Property as shown in the attached Exhibit "B," which is incorporated herein for all purposes, and as recorded 'm the plat records of Tarrant County as plat number FP- 96-69 and instrument number D 196213691; and WHEREAS, Licensee desffes to construct, place, and maintain certain unprovements which will encroach in, on, above, or below the Public Property; 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 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 Public Properiy as described in and at the location shown on Exhibit "C," but only to the e�ent shown thereon, for the purpose of constructing, insta lling, and maintaining a private storm drain (the "Encroachment"). Upon completion of the Encroachment, Licensee agreesto be responsble for maintaming the Encroachment within the Public Property. Licensee shall not eapand or otherwise cause the Encroachment to further infringe in or on the Public Property beyond what is specifically descrbed in Eghibit "C." OFFICIAL RECORD Tier II Eas ement Fa►cro achment C I TY S E C RE TARY Agreement PN21-00047 Rev' FT. WORTH, TX 2. All construction, uvstallation, maintenance, and operation of the Encroachment and the use or occupancy of the Public Property shall comply with and be performed in strict compliance with this Agreement and with the charter, ordinances, codes, and policies af the City. Prior to the construction or mstallation of the Encroacl�ment, Licensee shaIl submit all plans and specif'ications to the Director of the Development Services Department or duly authorized representative. Licensee shall not commence construction or installation of the Encroachment nor make any use of the Public Property until after the execution of this Agreement. 3. Licensee, at no expense to the City, shall make proper provisions for the relocation and 'mstallation of any e�sting or future utilities affected by such Encroachment and the use and occupancy of the Public Property, mclud'mg the securing the approval and consent of the appropriate utiliry companies and agencies of the State of Texas and its political subdivisions. In the event that any installation, reinstallatian, relocation, or repair of any e�stmg 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, mamtenance, or e�stence of the Encroachment and use of Public Property, Licensee shall pay to City an additional amount equal to such additional cost as determined by the Director of Transportation and Public Works, the Director of the Water Department, the Director of the Development Services Department, or their duly authorized representative. 4. Licensee agrees that Ciry may enter and utilize the Public Property at any time for any public purpose, including installing, repairing, replacmg, or maintaining improvements to its public facilities or utilities necessary for the health, safety, and welfare of the public. The City shall have no responsbility or liability for any damages related to the Encroachment resulting from the City's use of the Public Properry; however, the Ciry shalt make reasonable efforts to minimize such damage. 5. Upon termmation of this Ageement, Licensee shall, at the option of and at no expense to the City, remove the Encroachment and restore the Public Properiy to a condition acceptable to the Director of Transportation and Public Works, the Director of the Water Department, the Director of the Development Services Department or their duly authorized representative. Any such removal of the Encroachment shall be in accordance with then-existing City regulations and policies. It is understood and agreed to by Licensee that if this Agreement terminates and Licensee faiLs to remove the Encroachment and restore the Public Property, Licensee hereby gives City permission ta remove the Encroachment and any supporting structures from the Public Property, to restare the Public Tier II Easement Faicroachment Agreement Page 2 of 13 PN21-00047 Revised 11/2020 Property, and to assess a lien on the Property for the costs expended by the Ciry m taking such actions. 6. In order to defray all costs of inspection and supervision which the City has mcurred or will incur as a result of the construction, maintenance, inspection or management of the Encroachment and use of Public Property as provided for by this Agreement, Licensee agrees to pay to City at the time this Agreement is requested an application fee in the sum of Five Hundred Dollars ($500.00). 7. The term of this Agreement shall be for thirty (30) years, commencmg on the date this Agreement is executed by City. However, the City may termmate this Agreement upon Licensee's noncompliance with any of the terms of this Agreement. City shall notify Licensee m writing of any such noncompliance and if Licensee does not cure the noncompliance withm thirty (30) days of notice from City, the City may terminate this Agreement; however, if such noncompliance is not suscept�ble to cure within thirty (30) days, the City may terminate this Agreement if Licensee fails to commence and take such reasonable steps as are necessaryto remedy the noncompliance within thirty (30) days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with cantinuiry to remedy the noncompliance. 8. It is further understood and agreed between the parties hereto that the Public Property to be used and encroached upon is held by City as trustee for the public; that City exercises such powers over the Public Property 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 Public Property for the use and benefit of the public. It is accord'mgly agreed that if the governing body of City may at any time during the term hereof deternvne in its sole discretion to use or cause or permit the Public Property to be used far any other public purpose, including but not being limited to underground, surface, or overhead communication, drainage, sanitary sewerage, transmission of natural gas or electriciry, or any other public purpose, whether presently contemplated or not, that the parties agree to negotiate in good faith in order to accommodate both 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 Tier II Easement Fiicroachment Agreement Page 3 of 13 PN21-00047 Revised 11/2020 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 ENCROACIiMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, ELECTED OFFICIALS, OR INVITEES OF THE CITY; AND LICENSEE HEREBYASSUMES ALL LIABILITYAND RESPONSIBILITYFOR SUCH CLAIMS OR SUITS. LICENSEE SHALL LIKEWISE ASSUME ALL LIABILITYAND RESPONSIBILITYAND SHALL INDEMNIFYCITYFOR 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 Ciry with a Certificate of Insurance naming City as certificate holder as proof that is 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 "C." 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 unmediate ly 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 Ciry. A copy of such Cert�cate of Insurance is attached as Exhibit "D" and incorporated herein for all purposes. 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 Encroaclunent and restoration of the. Public Property. All insurance coverage required herem shall include coverage of all Licensee's contractors and subcontractors. 11. Licensee agrees to deposit with the Ciry when this Agreement is execuled a sufficient sum of money to be used to pay necessary fees to record this Agreement in the Tier II Easement Encroachment Agreement Page 4 of 13 PN21-00047 Revised 11/2020 real property records of the county in which the Encroachment is located. After bemg 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 use of the Public Property. 13. Licensee agees to pay promptly when due all fees, taxes, or rentals provided for by this Ageement 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 andthe exclusive right to control the details of its operations, and all persons performmg same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees, and 'mvitees. The doctrine of respondeat superior shall not apply as between City and Licensee, its officers, agents, servants, employee s, contractors, and subcontractors, and nothing herein sha.11 be canstrued 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 withm the Public Property and is not a conveyance of any right, title, or mterest in or to the Public Property, 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. 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 attorneys' fees. 17. The parties agree that the duties and obligations contained in Section 5 shall survive the termination of this Agreement. Tier II Easement Faicroachment Agreement Page 5 of 13 PN21-00047 Revised 11/2020 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 m wriiing 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. assigns. This Agreement shall be binding upon the parties hereto and their successors and 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 [SIGNATURES APPEAR ON FOLLOWING PAGE] Tier II Easement Fncroachment Agreement Page 6 of 13 PN21-00047 Revised 11/2020 City: CITY OF FORT WORTH By: DJ Harrell (May 6, 202116:25 CDT) D.J. Harrell, Director Development Services Department ATTEST: City Secretary Tier II Easement Fncroachment Agreement PN21-00047 Licensee: CRP/CHI DOWNING OWNER, L.P. a Delaware limited partnership By: CRP/CHI DOWNING GP, L.L.C., a Delaware limited liability company, its general partner By: CRP/CHI DOWNING VENTURE, L.L.C.,a Delaware limited liability company, its sole member By: CHI NORTH TEXAS 108 DOWNING, L.P., a Delaware limited partnership, its administrative member By: CHIDEVEI..DPMENT GP, L.L.C., a Delaware limited liability company, its general partner Name: William G. Mundinger, III Title: Vice President Approved As To Form and Legality Matthew A. Murray Assistant City Attorney Ordinance No. 24161-04-2020 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 reporting requirements. Janie Scqneff (1orq/es Janie Scarlett Morales (May 6, 202115:19 CDT) Janie S. Morales Development Services Page7 ofl3 Revised 11/2020 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 6th day of �M=aTy ____ , 20__1L. Jennifer L Ezernack Digitally signed by Jennifer L Ezernack Date: 2021.05.06 16:55:04 -05'00' Adobe Acrobat version: 2021.001.20150 Notary Public in and for the State of Texas After recording return to: Development Services Department Development Coordination Office 200 Texas Street Fort Worth, Texas 76102 Tier II F.asement Fncroachment Agreement PN21-00047 JENNIFER L. EZERNACK Notary Public STATE OF TEXAS Notary I.D. 130561630 My Comm. Exp. Mar. 1, 2024 Page8 ofl3 Revised 11/2020 STATE OF TEXAS COUNTY OF DALLAS § § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared William G. Mundinger, III, a Vice President of CHI DEVELOP11ENT GP, L.L.C., a Delaware limited liabi lity company, the general partner of CHI NORTH TEXAS 108 DOWNING, L.P., a Delaware limited partnership, the administrative member of CRP/CHI DOWNING VENTURE, L.L.C., a Delaware limited liab ility company, the sole member of CRP/CHI DOWNING GP, L.L.C., a Delaware limited liability company, the general partner of CRP/CHI DOWNING OWNER, L.P., a Delaware limited partnership (Title) 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 CRP /CHI DOWNING OWNER, L.P., a Delaware limited partnership (entity type), and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this A-fC� I , 2021. Uall41tP� Notary Public in and for the State of Texas �,•''�WJ',,,. SARAH PEARSON f)f :K:;��,l Notary Public, State of Texas �;.: .. �_iii Comm. Expires n 0-29-2024 ��,-:. ... -� ... � 802 "',;,,,,Of,,,,.. Notary ID 129156 11111 Tier II F.asement Encroachment Agreement PN21-00047 /)'t'h:}_ l day of Page9 of13 Revised 11/2020 EXHIBIT A Description ofthe Licensee's Properly Lot 1, Block 2, Trillium Addition, an addition of the City of Fort Worth, according to the plat recorded in Document No. D196213691, Plat Records of Tarrant County, Texas Tier II Eas ement Fncroacl�ment Agreement Page 10 of 13 PN21-00047 Revised 11/2020 EXHIBIT B Depiction ofthe Public Property Tier II Eas ement Encroachment Agreement Page 11 of 13 PN21-00047 Revised 11/2020 85/�-y r �g3�� .�,.,.�, .........................i ; .........:... :. 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B� �'+ ��s��,r � �'' ikL �a �€ � ��� ��t'� g �. t6� ! g� tF�'j�y� �� 3�� E��g3 0 tylY�� a� b�� ��e�e� j� ��@� �� �I, ,LL �'�!�� � te��=(f y is g�� P�;� � `� +inf��� � ��B 7i�� ! 3 d� �l��e@� � �a �?� �� EXHIBIT C Depiction and description of the Encroachment Tier II Eas ement Fncroachment Agreement Page 12 of 13 PN21-00047 Revised 11/2020 �,� W �, N r � + i Z � +I � -= �+ I � m I tJ _..._ � f ; , , . � / t J, � I .I�/ .�� / � � � "f/�':•� - �/ /. ��/�// r � J I x � � � 0 `� ' 1 l �= - � 20' 40' � - - -:� PROPOSED PRIVATE ' '` i' 12" WATER LINE � ++ i:ifZ:lYI11C SC'.1�..F. _ i"=,cf. ,,;, _ _ I � I � � iI 7 EXISTING PUBLIC 1Q" a �'+� ++�� �--- �- I I,. SANITARY SEWER x + ; j :� 1 — - — W ! if ; '� ; I `.(v � 1 ++', ���� ``` ``` I ':� f, . s�f'� � i CONNECT TO EXISTING SSMH � �� FL 8" (IN) = 602.00 + �+++; ' � RIM ELEV. = 612.4 I ,.. 1�� O N:6983913.18 � � ;�I:�- .�. .. .r'-- 1 ; ' I E: 2333162.63 I � 1;: �- - p? ;�.,_- ;� O $� S& ' t � i ,!' --� � ��--' �; Q' ` -&'' � ' ` r ry -�' I w � -- � - �,;,''; � , _ - � 1� M i � �" ss _ �, + ?� ;+' �' � :��� 1 �,rY � ;r �,?-1 1- � F�� � ' / _ .��;r~1'" '�=�_ "j ,� O --= , - � - ,t•. � :-�-- ; ' . J �; 4 __ � .�; _ �-:` � - - - � - PROPOSED PRIVATE 60"I ,i- ,i . , ', � , ; , -�-� .� ,j — ;',• _ , STORM DRAIN I � � PROPOSED PRIVATE STORM DRAIN �i :-• +� O'� ' =. '� _ - `. M �' I �`� . i' p `__ _ p-__ p- -+ � ,I I � ,y �y�i. ;r_ ,tj'-:�,,` +'`--.:fiy;';+ +� � _,, + ;; — l, \ ti� J �i rrr-� �•'--�p i'-��p`4+?++ CONNECTION TO EXISTING _ I Y'�' 7 y l r. l �� �" '_ TXDOT STORM DRAIN � � � -- - - - � � - `Y��,i; � , � — ------- �,. 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I : � �r � �� ` i _ __ I � �x � �' 1.-; -�� � �-� 1 f •�.__iO�Ot.� J1 LEGEND: 1 I � -�i'� 'f�� � � If� +i �� � !L/,' �'��-�? i i+i � + / 1 ': �''- , 0! +I +; ENCROACHMENT EP#1 / � - , ' �+ POINT � �I f 20" STEEL ENCASEMENT WITH GROUT � � � � 1, , ,� CONTROL POINT � CP #1 � W ' r I �� ;';' �f' � � 1 � �; � ' 1 ,ir; ��� HALFF� EXHIBIT C DOWNING DRIVE SITE 4000FOSSILCREEKBLVD FORT WORTH, TEXAS FORT WORTH, TEXAS 76737-2720 TEL(817)847-1422 DATE:04/05/2021 AV0:38747 TBPE FIRM #F312 620 1[�iN�■ TY.QQLft_Q_1C�.� s�a 42 LF CLASS III 60" RCP @ 8.84 % � 1 605 � _ EX. 8r X 5' R2� 600 � 590 Q [a Q z �� z J �(n J Z ?� Z OG I �-0DT � PY JC � � _p _W�_p irr S8S � Z W � x O � O , �—WsZ � W= �O . . o _�_�—o � ui„W ¢ o� . rn�.� r oU - - ' o Q-p 0—� Z � ¢ .r� z-� d z- 580 � z � � � � � o - v f n m tL ? �l? ° " ��$ � 575 LL LL LL�;� LL'LL � � 0+00 0+50 1+00 �II G � — � RIM = 618.25 — - - FILL TO BE PLACED AND_ COMPACTED TO 95% STD. PROCTOR DENSITY— � PROP.GROUND + I RIM = 613.95� t STA. 1+g4.09 STORM DRAIN LINE A � 10" WTR A CROSSING � �FL = 611.69 _ .-- — - i I ' � ' 1 ___ --- � —. GROUND ��_ � �.---..�_..._._ _ . , :- ; � .. � _...�-- - --- - ,��—, ;. � -�...._ �...r_:_%.�:�....:.�"��-_---------u._.... ---f~. I;,��~ ' � _.�.._..�....� 1 � S � � sU" aF n o.�9r _� _........_......._._.. ..._...--- ..�... _ .._.—_ . 7--�� - -- i j' • ' --- .__._.. . . . , . � ..� . ;;� _, ._ ,. . _.�.....�.�. � - C L60" HDPE ac 0.25% � STA. 1+43.22 STORM DRAIN LINEA INSTALL: — BEGIN 20" STEEL ENCASEMENT WITH GROUT SEE DETAIL 33 OS 24-D203 F \� w > � U x n m O—� �� N � � ❑ u - � La �� oaQ� �F onNirn �� com ^�� "` � -L2+,?--Q 4 �p. �. �- ' {Y N z 0r0 W'���—�� W�o 00 m�u n t� v� ��� � G�'—� u n'�~'n ��-t' 00 5 c�a rno ��—oo =�a-�o a—�'-�!�—=-u3� L �� �� y�� -� J 5��� � � J [!� =i �� aog� �aom _<<wov L-�—'Q 6� U --Q Q� ta-tG--- ' Q Q� p�-tD tv n� u~iu~iZ�LLw u~iv~iz.=�� � c~nu~i?in��� I =�n ��°' ^`m � �fI LL $ �'� �� LLEa 1+50 2+00 2+50 3+00 y 0 o- 0 0 +-; 3+50 4+00 ��� HALFFy EXHIBIT C DOWNING DRIVE SITE 400DFOSSILCREEKBLVD FORT WORTH� TCM1S TEL(8wo� 142EZWS 7fi137-2720 DATE: 4/05/2021 AVO: 38747 TBPE FIRM #F.�'12 EXHIBIT D Ce rtificate of Ins urance Tier II Eas ement Fxicroachment Agreement Page 13 of 13 PN21-00047 Revised 11/2020 Attachment Code: D575446 Master ID: 1335544, Certificate ID: 17502793 Carlyle Realty Partners, L.P. Excess and Environmental Coverage Excess Coverage: Policy Term: 03/15/2021-03/15/2022