HomeMy WebLinkAboutContract 58344 Date Received: 11/02/2022 Re cord Number: PN22-00154
Time Received: 2:56 p.m. City Secretary No.: 58344
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"),
acting by and through its duly authorized City Manager, Assistant City Manager, or
Director of the Development Services Department, and Blazing Trail, LP, a(n) Texas
limited liability company ("Licensee"), acting by and through its duly authorized
Manager.
RECITALS
WHEREAS, Licensee is the owner of the real property located at 4101 Mark IV
Parkway, Fort Worth, Texas 76106 ("Property"), being more particularly described in
the attached Exhibit "A"which is incorporated herein for all purposes; and
WHEREAS, the City owns 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 in the plat records of Tarrant County as plat number FP-21-
108; 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 extent shown thereon, for the purpose of constructing,
installing, and maintaining a private storm drain (the "Encroachment"). Upon
completion of the Encroachment, Licensee agrees to be responsible for maintaining the
Encroachment within the Public Property. Licensee shall not expand or otherwise cause
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FT.WORTH, TX
the Encroachment to further infringe in or on the Public Property beyond what is
specifically described in Exhibit "C."
2.
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, 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. 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 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 existing 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, 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 maintaining
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 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 Department, the Director of the Development Services Department or their
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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 to
remove the Encroachment and any supporting structures from the Public Property, to
restore the Public Property, and to assess alien 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 forty (40) years, 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 (at the addresses set forth on the signature page hereto) 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.
S.
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 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 in good faith in order to
accommodate both the Encroachment and the public purpose.
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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 NO T
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 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 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 Certificate 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 Encroachment and restoration of the Public Property. All insurance coverage
required herein shall include coverage of all Licensee's contractors and subcontractors.
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III.
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.
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 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 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 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.
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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.
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 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 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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City: Licensee:
CITY OF FORT WORTH Blazing Trail, LP
a Texas limited partnership
By: 2020 Blazing Trail GP, LLC
a Texas limited liability company
its general partner
By: DJ Harrell(Oct 28,2022 11:43 CDT) By: r J'4j)
D.J. Harrell, Director of the Name:D. Randall Stepp
Development Services Department Title: Manager
Date: Oct 28, 2022 Date: Z-S 2- Z.
4.d'�40�Qq�
ATTEST: -5.
foRr �p Approved As To Form and Legality
�a
0
Pva a=o
,TannBf'fo S. Goodall '°o* ° mod
o d
Jannette S.Goodall(Nov 1,2022 08:17 CDT) a�C oExpSoaG
Jannette Goodall, Thomas Royce Hansen
City Secretary Assistant City Attorney
Date: Nov 1, 2022
Date: Oct 27, 2022
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.
Aka�IlGGy of 62GtaZIV
Matt Tilly on behalQof(Oct 27,2022 15:52 CD11
Janie S. Morales
Development Services
Date: Oct 27, 2022
OFFICIAL RECORD
Address for notice:
Blazing Trail, L.P. CITY SECRETARY
5300 Camp Bowie Boulevard FT. WORTH, TX
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Fort Worth, Texas 76107
Attn: D. Randall Stepp
Email: rsteppl�cc),mac.com; eschaefer(Cc),steppinvestments.com
With a copy of all notices to:
RLP III Blazing Trail Phase I, LLC
c/o US RE Company, LLC
9830 Colonnade Blvd., Suite 600
San Antonio, Texas 78230
Attn: Lange Allen
Email: lange.allen(a usrealco.com, michael-boyd cr,usrealco.com, notice@usrealco.com
Upon a change in ownership of the Property, the Licensee shall be responsible for
providing the City with written notice of such new landowner's address for notices
pursuant to this Agreement.
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FOR CITY OF FORTWORTH
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 28th_day of
October 20 22
Wendy L. Digitally signed by Wendy L.Beardslee �pRY�'Ge WENDY L BEARDSLEE
Beardslee Date:2022.102812:01:48-D5'00' 2 Notary Public
+ ,r STATE OF TEXAS
Notary I.D. 13323719-3
Notary Public in and for the State of Texas 90, My Comm.Exp. July 28,2025
After recording return to:
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
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STATE OF Te--Ca S §
COUNTY OF `T ac r r - rlf §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
-T�e SCc S , on this day personally appeared D. Randall Stepp, Manager (Title) 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 Blazing Trail, LP, a Texas limited
partnership (entity type), and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this as day of
20 ----------------------------------------
�- YOLANDA COMBS
1(omta
NObp�Y K"-8TATE OF TEXASNw ary Public in and for theIOt 12'18463-7COMM.EXP."-30-2023
State of
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EXHIBIT A
Legal Description of the Licensee's Property
Being tract or parcel of land lying in the Mary Johnson Survey, Abstract NO. 858, the
William Baker Survey, Abstract No. 145 and the Seburn Gilmore Survey, Abstract No.
590 and also being a portion of the tract of land conveyed to Consolidated Chemical
Industries, a division of Stauffer Chemical Company, per deed recorded in Volume 2227,
Page 190 of Tarrant County Deed Records, Tarrant County, Texas.
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EXHIBIT B
Depiction of the Public Property
Tier II Easement Encmachment Agreement Page 12 of 14
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EXHIBIT C
Depiction and description of the Encroachment
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EXHIBIT A
Encroachment Agreement
Lot 1, Block 1, Blazing Trail Addition
893 Square Feet or 0.021 Acres
City of Fort Worth,Tarrant County,Texas
BEING a tract of land situated within the Mary Johnson Survey,Abstract Number 858,City of Fort Worth,Tarrant County,Texas
and being a portion of a Lot 1, Block 1, Blazing Trail Addition,an addition to the City of Fort Worth,Tarrant County,Texas as
shown on the plat recorded in Document Number D222250173, Plat Records,Tarrant County,Texas(P.R.T.C.T.)and being more
particularly described by metes and bounds as follows: (Bearings referenced to U.S. State Plane Grid 1983-Texas North Central
Zone (4202) NAD83 as established using the AIITerra RTKNet Cooperative Network. Reference frame is NAD83(2011) Epoch
2010.0000. Distances shown are U.S.Survey feet displayed in surface values)
COMMENCING at a found 5/8-inch capped iron rod marked 'BHB INC"for the southwest corner of Lot 1, Block 1,Stepp Business
Park, an addition to the City of Fort Worth,Tarrant County,Texas as shown on plat recorded in Cabinet B,Slide 1767, P.R.T.C.T.,
same being the most westerly northwest corner of the a tract of land as described by deed to Blazing Trail, LP as recorded in
Document Number D199046291, Deed Records,Tarrant County,Texas (D.R.T.C.T.),and being in the northeasterly line of a tract of
land described by deed to Texas Electric Service Company as recorded in Volume 1979, Page 15, D.R.T.C.T.;
THENCE South 70°21'25" East,over and across the said Blazing Trail tract and the aforesaid Blazing Trail Addition,a distance
of 1887.20 feet to the POINT OF BEGINNING of the hereon described tract;
THENCE continuing over and across the said Blazing Trail Addition the following courses and distances:
North 54°40'54" East, a distance of 55.02 feet to a point from which a point for the southeast corner of the aforesaid
Lot 1 bears North 53'24'14"West, a distance of 1625.18 feet from said point a found 5/8-inch iron rod bears
North 85°2759" East, a distance of 0.47 feet;
South 80'46'27" East, a distance of 3.29 feet to a point;
South 35'19'06" East, a distance of 21.05 feet to a point;
North 80'46'27"West, a distance of 11.91 feet to a point;
South 54'40'54"West,a distance of 48.87 feet to a point;
North 35'19'06"West, a distance of 15.00 feet to the POINT OF BEGINNING and CONTAINING 893 square feet or 0.021 acre
of land more or less.
SURVEYOR'S CERTIFICATION
I, Robert A. Lee,a Registered Professional Land Surveyor licensed in the State of Texas,do
hereby declare that this survey is true and correct and was prepared from an actual survey
made under my supervision on the ground. Further,this survey conforms to the general rules
of procedures and practices of the most current Texas Engineering and Land Surveying Practice
Acts and Rules Concerning Practice and Licensure.
�PCE•�F• T1+
� .•��sTER•.�9s
am. B ..:
Robert A. Lee
BAIRD,HAMPTON&BROWN ...........:.
engineering and surveying Robert A. Lee 'Q 6895 P••
State of Texas Registered Professional Land Surveyor ly�FFss�o?Q
6300 Ridglea Place,Suite 700 Fort Worth,TX 76116 No.6895 SUR\]
dee@bhbinc.com•817.338.1277•bhbinc.com Date:October 18,2022
TBPELS Firm#44,410011300
Drawing: E:\Survey20\l14 Blazing Trail\000\Dwg\EASEMENT EXHI BITS\ENCROACH M ENT AGREEMENT.dwg
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EXHIBIT D
Certificate of Insurance
Tier II Easement Encmachment Agreement Page 14 of 14
PN22-00154 Revised 11/2020
065611.00644 404990 v1