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HomeMy WebLinkAboutContract 55788DocuSign Envelope ID: 681485C0-42D2�103-BA99-34D34882A6A9 Date Received: 06/O1/2021 Time Re ce ived: 11:05 a m City Secretary Number: 55788 PUBLIC PROPERTY EASEMENT ENCROACHMENT LICENSE AGREEMENT TIER II 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 Director of the Development Services Department, and CFT NV DEVELOPMENTS, LLC, a Nevada limited liability company ("Licensee"), acting by and through its duly authorized Manager. RECITALS WHEREAS, Licensee is the owner of the real property located at 5625 South Hulen Street, Fort Worth, Texas 76132 ("Property"), being more particularly descrbed in the attached Exhibit "A" which is incorporated herein for all purposes; and WHEREAS, the City owns a water 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 'm the plat records of Tarrant County by instrument number D2152b2811; and WHEREAS, Licensee desires to construct, place, and maintain certain improvements which will encroach in, on, above, or beIow 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 descrbed 'm and at the location shown on Exhibit "C," but only to the extent shown thereon, for the purpose of constructing, installing, and maintaining a flume (the "Encroachment"). Upon completion of the Encroachment, Licensee agrees to be responsble for maintaining the Encroachment within the Public Property. Licensee shall not expand or otherwise cause the Encroachment to further infringe in or on the Public Property beyond what is spec�cally descrbed in F.xhibit ��C" Tier II Easement Ea�croachment Agreement PN21-00072 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX DocuSign Envelope ID: 681485C0-42D2-4103-BA99-34D34662AfiA9 � All construction, installation, 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, ord'mances, codes, and policies of the City. Prior to the constructian or installation of the Encroachment, Licensee shall submit all plans and specifications to the Director ofthe Development Services Departtnent 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 installation of any eacisting or future utilities affected by such Encroachment and the use and occupancy of the Public Properiy, includ'mg 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 existing or future utility or improvements owned by or constructed by or on behalf of the public or at public expense is naade more costly by virtue of the construction, maintenanc e, 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 Du�ector of Transportation and Public Works, the Director of the Water Deparhnent, 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, repa�ing, replacing, or maintainmg improvements to its public facilities or utilities necessary for the health, safety, and welfare of the public provided that City, except in the event of an emergency, provides reasonable notice to Licensee prior to its entry and that City's entry does not unreasonably interfere with Licensee's business operations on the Property. The City shall have no responsbility or liability for any damages related to the Encroachment resulting from the City's use of the Public Property; however, the City shall make reasonabte efforts to minimize such damage. 5. Upon termination of this Agreement, Licensee shall, at the option of and at no expense to the City, remove the Encroachment and restore the Public Property to a condition acceptable to the Director of Transportation and Public Works, the Director of the Water Deparhnent, the Director of the Development Services Department or their duly authorized representative. Any such removal of the Encroachment shall be in accordance with then-e�stmg 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 to remove the Tier II Easement F�croachment Agreement Page 2 of 13 PN21-00072 Revised 11/2020 DocuSign Envelope ID: 681485C0-42D2�103-BA99-34D34BB2A6A9 Encroachment and any supporting structures from the Public Property, to restore the Public Properiy, 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 incurred 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 Seven Hundred Dollars ($700.00). 7. The term of this Agreement shall be for thirty (30) years, commencing on the date this Agreement is executed by City. However, the City may terminate this Agreement upon Licensee's material noncompiiance 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 Agreeznent 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 during the term hereof determine in its sale discretion to use or cause or permit the Public Property to be used for any other public purpose, includ'mg 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 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 AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL Tier II Easement Encroachment Agreement Page 3 of 13 PN21-00072 Revised 11/2020 DocuSign Envelope ID: 681485C0-42D2�103-BA99-34D34682A6A9 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 ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORSy LICENSEES, OR ELECTED OFFICIALS; 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, OR LICENSEES. 10. While this Agreement is in effect, Licensee agrees to furnish City with a Certificate of Insurance naming City as certificate hoider as proof that is has secured and paid for a poGcy of public Gability insurance covering all pubGc 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 $i,00a,aoa 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 immediate 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 City. A copy of such Certificate of Insurance is attached as Exhibit "D" and 'mcorporated 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 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. Tier II Easement Er►croachment Agreement Page 4 of 13 PN21-00072 Revised 11/2020 DocuSign Envelope ID: 681485C0-42D2�103-BA99-34D346BZA6A9 12. Licensee agrees to comply fully with all applicable federal, state, and local ]aws, statutes, ord'mances, codes, and regulations in connection with the construction, operation, and mamtenance of the Encraachment and use of the Public Property. 13. Licensee agrees to pay promptly when due all fees, taxes, or rentals pravided for by this Agreement or by any federal, state, or local statute, law, or regulation. 14. Licensee covenants and agees 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 responsble for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, and licensees. 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 creatmg 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 within the Public Property and is not a conveyance of any right, title, or interest m or to the Public Property, nor is it meant to convey any right to use or occupy property in which a th�d- parly 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 PN21-00072 Revised 11/2020 DocuSign Envelope ID: 681485C0-42D2-4103-BA99-34D34B62A6A9 1 S. Licensee covenants and agrees that it wilI not assign all or any of its rights, privileges, or duties under this Ageement without the written approval of the City, and any attempted assignrnent withaut 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 requffe 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 assignment to any secured lender of Licensee shall be effective as to City unless and until written notice af such foreclosure or assignment is provided to City. 19. Any cause of action for breach of this Agreement shall be brought in Tarrant County, Te�s. This Agreement shall be gaverned by the laws of the State of Texas. 20. T'his Agreement shall be bind'mg upon the parties hereto and their successors and assigns. 21. This Agreement may be executed 'm multiple counterparts, each of which shall be considered an original, but all of which shall constitute one irtstrument [SIGNATURES APPEAR ON FOLLOWING PAGE] Tier II Easement Encroachment Agreement Page 6 of 13 PN21-00072 Revised 11/2020 DocuSign Envelope ID: 681485C0-42D2-4103-BA99-34D34B82A6A9 City: Licensee: CITY OF FORT WORTH CFT NV DEVELOPMENTS, LLC By: DJHa=202110:24CDT) �C----By: __________ _ D.J. Harrell, Director of the Development Services Department Date: May 27, 2021 Name: Winnie Chan Title: Manager Date: Meti l]1 ::ZO�I ATTEST: City Secretary Tier II F.asement Encroachment Agreement PN21-00072 Gllo<uSl'jMd by: Approved as to Form Y.� .. �l:e Approved As To Form and Legality Mafthew t1urrczy Matthew Murray {May 20, 202115:2 5 CDT) 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. 1tfl11&ScarwtMrtt:eiff: Janie Scarlett Morales {May 20, 202114:55 CDT) Janie S. Morales Development Services Page7 ofl3 Revised 11/2020 DocuSign Envelope ID: 681485C0�2D2-4103-BA99-34D34BB2A6A8 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this da.y personally appeared D.J. Harrell, known to me to be the person whose name is subscrbed 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 27th day of May _, 2021. Je n n ife r L Digitally signed by Jennifer L Ezernack Date: 2021.05.27 13:47:53 -OS'00' Ezernack AdobeAcrobatversion: Notary Public in and for2the ZS'tate of Te�s After record'mg return to: Development Services Department Development Coordination Office 200 Texas Street Fort Worth, Texas 76102 Tier II Easement Fxicroachment Agreement PN21-00072 o,�p,RY/'ve, JENNIFER L. EZERNACK _ q � Notary Public * C�f7 + STATE OF TEXAS NT ��� Q Notary I.D. 130561630 9�F�F�+ My Comm. Exp. Mar. 1, 2024 OFFICIAL RECORD CITY SECRETARY FT. W�RTH, TX ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and nat the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF LOS ANGELES } ) ss. ) On May 17, 2021, before me, FIC?NA LE, Notary Public, personally appeared WINNIE CHAN, who proved to me on the basis af satisfactory evidence to be the person(s) whose name(s) isl� subscribed to the within instrument and acknowledged to me that �/she/� executed the same in �/her/� authorized capacity(f�, and that by #is/her1� signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my name and ofFicial seal. FIONA LE a :;��:,�;�:�, Notary Public - California �-vra --.� i=; Los Angeles County n `''�#�`�"' Commission � 2281640 " �y,: My Comm. Expires Mar 19, 2023 � Le ry Public in and for the State of California My commission expires: March 19, 2023 PUBLIC PROPERTY EASEMENT ENCROACHMENT LICENSE AGREEMENT Re: Certain Real Property located at Fort Worth, TX Signer: Winnie Chan, Manager of CFT NV Developments, LLC, a Nevada limited liability company OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX DocuSign Envelope ID: 681485C0-42D2-4103-BA99-34D34862A6A9 EXHIBIT A Description ofthe Licensee's Property Tier II Easement Encroachment Agreement Page 10 of 13 PN21-00072 Revised 11/2020 IU: titil4tfb(;U-4GU1-41U3-tSAy9-34U34t3t3ZA6A9 ENCROACHMENT AGREEMENT VICINITY MAP PROPOSED PANDA EXPRESS 5625 S. HULEN ST. FORT WORTH, TEXAS 76132 LOT 3-R2A-2, BLOCK 1 HULEN RETAIL ��BANNISTER E N G I N E E R 1 N G 2ao ruo�+ rn��r�en Road i Ma��r��a, rx �bves i ei�.aa2.zo�+ ai�.s�z.zo9s rax J reP�s R�GtsrpnnoH no. ioi9ss� VICI N ITY MAP NOT TO SCALE FORT WORTH, TEXAS DocuSign Envelope ID: 681485C0-42D2�103-BA99-34D34B62A6A9 EXHIBIT B Depiction ofthe Public Property Tier II Easement Encroachment Agreement Page 11 of 13 PN21-00072 Revised I1/2020 DocuSign Envelope ID: 681485C0-42D2-4103-SA99-34D34662A6A9 � ��,. 11d132i N3lf1H — — Ae ��� MO� 1`dld IVNI� srrorsvau �va awun ox�roua � � ��. �`���a �_ -- a g" `� F �'a�r m � y U � , ` � -; I ! ��.`e � p � . ,�,.h, �'j�Ll�p° # � x. yS� ? ` rl �'e � ` taltl ' i � . ¢ •,,y est � :(��y� ` � �� ��� � � � ���� . i # d �� o��Ug R �I � �-; a������� � a � ��+ �9�$���� � LL � � ����W � � H�� � 0 d `'� '� `` � ���a •„� ,���""cS 1 $ ���6 � � ���� Q b . � p ~ ` � � �fx " � � ,_ � P !, � �� ~ S��' � .. .�\ ���� � � ��m�,q I _ �� S� � � �` b� $ � ��� _ -`` .� g� j �� pS� '°'��'«,7 _ � � �� � � � �s��LL � . �_ se o @ � ' q , I V ' U ``` � ~� � � K � F r ; � . . 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Is- � �SFn,F�y � � ! / ENCROACHMENT AGREEMENT FLUME EXHIBIT // �` � � t / � j / � � I � �— ti� i / � � �' �_,_ � � / � % �� I � � _` \ � PANDA EXPRESS 5625 S. HULEN ST. FORT 1NORTH, TX 76132 LOT 3-R2A-2, BLOCK 1 HULEN RETAIL / � � 4 � �Jty� � / � / � � / � / / � � � � / � �o y � � , � '� ,' � � / � �� � � \ � \ � � p � � �� � �`�BANNISTER E N G I N E E R I N G 24� Nath Mrtchdl Rond I Mansfieltl, TX 760fi3 I BI7.Q42.2q94I 817.&{7,2095 �ax � 7BPL5 REGISTRAT[ON N0.10193823 VOGG�7iJf1 CfIV@IOF761U: 0814a�1.V-4LUL�-IU3-CSH`J`J-34U34CSCFLHDH`J PROPOSED SIDEWALK 0.45' 3.0' — ANCHOR BOLT In'P) �o • - I I ! I Z...-_ 6.5' 0.45' 3.0' 5 3/n' I� i � i i i�a � s I, I- . � � I� I I I - I � i .. I I � i 2�� #3 BARS 5�� #3 BARS @ 18" O.C.E.W. Ya' THICK, DIAMOND — PATTERNED STEELPLATE NOTE: � 0 PROPOSED SiDEWALK 0.45' _ n � . a E i—I11- ' � � I I I III II i i i i 1. / x4 ANCHOR BOLTS TO BE PLACED 1MTH CONCRETE AND FLUME FLOW DATA FLUSH 1MTH TOP OF PLATE. 80LTS TO BE SPACED 12" ON CENTER. Q5=2.83 CFS 2. CONCRETE SHALL BE "CLASS A". SLOPE=3.1% N-VALUE=0.017 DEPTH=0.13' (1.6") VELOCITY=3.6 FPS CONCRETE DRAINAGE FLUME UNDER PROPOSED SIDEWALK N.T.S. ENCROACHMENT AGREEMENT FLUME DETAIL �'1BANNISTER. E N G I N E E R I N G 244 North Mitchdi Ra7d I Mansfieitl, 7)( 76063 I 6! ).892.7644 r 81/.897.3495 �ax � TBPLS REGISTRATION NO. 10143823 DocuSign Envelope ID: 681485C0-42D2-4103-BA99-34D34B62A6A9 EXHIBIT D Certificate ofInsurance Tier II Easement Encroachment Agreement Page 13 of 13 PN21-00072 Revised 11I2020