HomeMy WebLinkAboutContract 55730Date Received: 05/18/2021
Time Received: 11:19 am
City Secretary
Numbe r: 55730
PUBLIC PROPERTY EASEMENT ENCROACHMENT LICENSE AGREEMENT
TIER 11
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"),
actmg by and through its duly authorized City Manager, Assistant City Manager, or
Director of the Development Services Department, and LENNAR HOMES OF TEXAS
LAND AND CONSTRUCTION, LTD., a(n) limited partnership ("Licensee"), acting by
and through its duly authorized agent.
RECITALS
WHEREAS, Licensee is the owner of the real property located at west of the
intersection ofHeritage Trace Blvd and Old Decatur Road, Fort Worth, TeXas 76179
("Property"), being more particularly described in the attached Exhibit "A" which is
incorporated herein for all purposes; and
WHEREAS, the City owns a drainage easement (the "Public Property") adjacent
to the Property as shown in the attached Exhibit `B," which is incorporated herein for all
purposes, and as recorded in the plat records of Tarrant County as plat number FP-19-118;
and
WHEREAS, Licensee desires to construct, place, and maintain certain
improvements 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 Property as described in and at the location shown on Exhibit
"C," but only to the e�tent shown thereon, for the purpose of constructmg, installing, and
mamtaming a retaining wall (the "EncroachmenY'). Upon completion of the
Encroacl�ment, Licensee agrees to be responsible for maintaining the Encroachment within
the Public Property. Licensee shall not expand or otherwise cause the Encroachment to
TierIIEasementEncroachment OFFICIAL REGORD
Agreement
pN21-000sl CITY 5ECRETARY
FT. VII�RTH, TX
further infringe in or on the Public Property beyond what is specif'ically described in
Exhibit "C."
2.
All construction, installation, mamtenance, 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 of
the City. Prior to the construction or installation of the Encroachment, Licensee shall
submit all plans and specifications to the Director of the Development Services Department
or duly authorized representative.
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 and the
use and occupancy of the Public Property, including the securing the approval and consent
of the appropriate utility companies and agencies of the State of Texas and its political
subdivisions. In the event that any installation, reinstallation, relocation, or repair of any
e�sting or future utility or improvements owned by or constructed by or on behalf of the
public or atpublic expense is made more costly by virtue of the construction, maintenance,
or existence 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 City may enter and utilize the Public Property at any time for
any public purpose, including installing, repairing, replacing, or maintauvng improvements
to its public facilities or utilities necessary for the health, safety, and welfare of the public.
The City shall have no responsibility or liability for any damages related to the
Encroachment resulting from the City's use of the Public Property; however, the City shall
make reasonable efforts to miniinize such damage.
5.
Upon termination of this Agreement, Licensee shall, at the option of and at no
expense to the City, remove the Encroacl�ment and restore the Public Property 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 Encroacl�ment and
restore the Public Property, Licensee hereby gives City permission to remove the
Encroachment and any supporting structures from the Public Property, to restore the Public
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PN21-00051 Revised 11/2020
Property, and to 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 incurre d
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) ye ars, commencing on the date
this Agreement is eXecuted by City. However, the City may terminate this Agreement
upon Licensee's noncompliance with any of the terms of this Agreement. City shall notify
Licensee in writing of any such noncompliance and if Licensee does not cure the
noncompliance within thirty (30) days of notice from City, the City may terminate this
Agreement. However, the City may, at its sole option, allow the Agreement to remain in
effect so long as Licensee has taken reasonable measures to cure the noncompliance or is
continuing to diligently attempt 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 accordingly agreed that if the governing body of City may at any time
durmg the term hereof determine in its sole discretion to use or cause or permit the Public
Property to be used for any other public purpose, 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 m good faith m 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
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
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PN21-00051 Revised 11/2020
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 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
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 fiunish City 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 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 Certif'icate 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 durmg the term of this Agreement and until the removal of the Encroachment and
restoration of the Public Property. 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 the county in which the Encroachment is located. After being
recorded, the original shall be returned to the City Secretary of the City of Fort Worth.
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PN21-00051 Revised 11/2020
12.
Licensee agrees to comply fully with all applicable federal, state, and local laws,
statutes, ord'mances, codes, and regulations m connection with the construction, operation,
and maintenance of the Encroachment and use of the Public Property.
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
permittmg Licensee to construct, mamtam, and locate the Encroachment over or within the
Public Property and is not a conveyance of any right, title, or interest 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 contamed 'm Se ction 5 shall survive
the termination of this Agreement.
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PN21-00051 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 witl�held.
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 siYty (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
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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PN21-00051 Revised 11/2020
City: Licensee:
CITY OF FORT WORTH LENNAR HOMES OF TEXAS LAND AND CO RUCTION, LTD.
By: DJ Harrell (May 12, 202108:24 CDT)
D.J. Harrell, Directo1· of the
Development Services Depa1tment Title: Authorized Agent
Date: May 12, 2021
ATTEST:
City Secretary
Tier 1I Easement Encroachment
Agreement
PN21-00051
Date:5-10-2021--------------
Approved As To Form and Legality
Matthew A. Murray
Assistant City Attorney
Ordinance No. 24161-04-2020
Contract Compliance Manager: By signing I aclmowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all petformance
and reporting requirements.
Janie S. Morales Development Services
Page 7 of13
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 foregomg 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 LTNDER MY HAND AND SEAL OF OFFICE this 12th day of
May , 20 21 .
Je n n i f e r L Digitally signed by Jennifer L Ezernack
Date: 2021 A5.12 093722 -OS'00'
Ezernack z0ob001c20150version:
Notary Public in and for the State of Texas
o,�p,RYPUe, JENNIFER L. EZERNACK
_ � Notary Public
* � + STATE OF TEXAS
N9 � � +Q Notary I.D. 130561630
�oF� My Comm. Exp. Mar. 1, 2024
After recording return to:
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
Tier II Easement Encroachment
Agreement
PN21-00051
OFFIGIAL RECORD
CITY SECRETARY
FT. VIIQRTH, TX
Page 8 of 13
Revised 11/2020
STATE OF TEXAS §
COUNTY OF DALLAS §
BEF�RE NfE, the Lindersi�ned authority, a Notacy PUb1ic in and for the State of
��'�L , oaltllis day personally appeared Jennifee-Eller, Authorized Agent, lcnowi7 to
me to be the persan whose name is subscribed to tl�e foregoing instrument, and
acla�owledged to me that he oi- she executed the sa�ne for the pta�•poses and considet�ation
therein expressed, as the aci and deed of Lennar Ho�es of Texas Land aizd
ConsE�•uctian, Ltd, a litr�ited paa-tnea-ship, and i�� the capacity therein stated.
G[VCN UNDER MY HAND AND SEF1L OF OFF[CE this � day oF
,
, Za
qM0.Y pVd� LAURA LYNN SAI.GADO
=°�j n NoC�ry ID }I125164119
,,a,`� J� My Commission £xpires
Notary Pubiic in and for the >�.oF � ,lanuary 18, iozs
Siate af �.�.
Tier II Easement Encroachment
Agreement
PN21-00051
OFFIGIAL RECORD
����-��x�:��r_�:�-i
FT. VIIQRTH, TX
Ravised 11/2fl20
EXHIBIT A
BEING a tract of land situated in the Benjamin Thomas Survey, Abstract Number 1497,
Tarrant County, Texas, and being a portion of "East Tract" (566.415 acres) conveyed to
BOA SORTE Limited Partnership, et al, according to the document filed of record in
Instrument No. D205064579, Official Public Records of Tarrant County, Texas, and
being more particularly described as follows:
COMMENCING at a 5/8 inch iron rod with plastic cap stamped "KHA" found for the
northwest corner of "Exempted Tract Twd' (4.76 acres), according to the document filed
of record in Volume 5661, Page 229, Deed Records of Tarrant County, Texas, same be
an interior ell corner of said "East Tract"
THENCE North 21°55'S8" West, crossing said "East Tract" a distance of 1,259.67 feet to
the POINT OF BEGINNING;
THENCE continuing across said "East Tract" the following four (4) courses:
North 84°39'29" West, a distance of 49.83 feet to a point for corner;
North 03°22'O1" East, a distance of 39.23 feet to a point at the beginning of a non-
tangent curve to the right having a central angle of 07°03'29", a radius of 415.78
feet, a chord bearing and distance of South 84°21'04" East, 51.19 feet;
In a southeasterly direction, with said curve to the right, an arc distance of 51.22
feet to a point for corner;
South OS°20'31" West, a distance of 38.93 feet to the POINT OF BEGINNING
and containing 0.046 of an acre (2,000 square feet) of land, more or less.
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PN21-00051 Revised 11/2020
EXHIBIT B
Depiction of the Public Property
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PN21-00051 Revised 11/2020
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EXHIBIT C
Depiction and description ofthe Encroachment
Tier II Easement Encroachment
Agreement Page 12 of 13
PN21-00051 Revised 11/2020
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GRAPHIC SCALE 40'
N O RT H P O I N T E P H AS E 1 B 13455 Noel Road, Two Galleria Office Tower
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Encroachment Agreement Exhibit C(2 of 2) 9�2'��0.1300
Sta[e of Texas Registre[ion No. F-928
EXHIBIT D
Certificate ofInsurance
Tier II Easement Encroachment
Agreement Page 13 of 13
PN21-00051 Revised 11/2020