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HomeMy WebLinkAboutContract 59709Date Received: 7/6/2023 Time Received: 4:20 p.m. Record Number: PN23-00055 City Secretary No.: 59709 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 BBLW Investments, LLC, 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 6700 Northwest Loop 820 Freeway, Fort Worth, Texas 76135 ("Property"), as recorded in Deed Records as Lots 1R3A, Block 2, of Landmark Quebec Addition, an Addition of the City of Fort Worth by Instrument Number D223053956, in Tarrant County, Texas, and; WHEREAS, the City owns a water and sanitary sewer easement (the "Public Property") adjacent to the Property, recorded in the plat records of Tarrant County as plat number FP-16-008; 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 "A," but only to the extent shown thereon, for the purpose of constructing, installing, and maintaining an electrical line (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 the OFFICIAL RECORD Tier H Easement Encroachment Agreement CITY SECRETARY Page 1 of 12 Revised 12/2022 FT. WORTH, TX Encroachment to further infringe in or on the Public Property beyond what is specifically described in Exhibit "A." 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 encroachment in connection with Licensee's use thereof such Encroachment and the use and occupancy of the Public Property by Licensee, 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 Propertyby Licensee, 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 Tier II Easement Encroachment Agreement Page 2 of 12 Revised 12/2022 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 to remove the Encroachment and any supporting structures from the Public Property, to restore the Public Property, and in the event Licensee fails to reimburse the City within thirty (30) days after written request, 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 a one time application fee in the sum of Nine Hundred Dollars ($900.00). 7. The term of this Agreement shall be for thirty (35) 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 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. Tier II Easement Encroachment Agreement Page 3 of 12 Revised 12/2022 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 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 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 "B" 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. Tier H Easement Encroacbment Agreement Page 4 of 12 Revised 12/2022 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. 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. Tier II Easement Encroachment Agreement Page 5 of 12 Revised 12/2022 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. 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. assigns 20. 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 Tier H Easement Encroachment Agreement Page 6 of 12 Revised 12/2022 [SIGNATURES APPEAR ON FOLLOWING PAGE] Tier H Easement Encroachment Agreement Page 7 of 12 Revised 12/2022 City: CITY OF FORT WORTH By: DJ Harrell (Jul 5, 2023 09:38 CDT) D.J. Harrell, Director of the Development Services Department Date: Jul 5, 2023 ATTEST: Jannette Goodall, City Secretary Date: Jul 5, 2023 Licensee: BBLW Investm , LLC A Texas ility company Name: ria--jf ser Title: Man 2 Date: t 3 4 Approved As To Form and Legality Jeremy Anato-Mensah Assistant City Attorney Date: Jul 3, 2023 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. 16Xde_-_�Dlaza'D Rebecca Diane Owen (Jul 5, 202308:58 CDT) Rebecca Owen Development Services Date: Jul 5, 2023 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Tier H Easement Encroachment Agreement Page 8 of 12 Revised 12/2022 STATE OF TEXAS § o,►':'' -" , Vanessa Rodriguez COUNTY OF TARRANT * * N0�' Pub�C, suite d Texaa Oomm. born Obt�2oxi Notary ID 193102934 BEFORE ME, the undersigned authority, a Notary Public in and for the State of -%M-1 on this day personally appeared Brian Glaser, 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 BBLW Investments, LLC, a Texas limited liability company (entity type), and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this �)D day of CAO 20 ZIj 01 Notary Public in and for the State ofs Tier H Easement Encroachment Agreement Page 10 of 12 Revised 12/2022 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 5th day of lulu 2023 WendyL Digitally signed by - • Wendy L. Beardslee o�PRy Pie, WENDY L BEARDSLEE Date:2023.07.05 z c, Notary Public , Bea rd s I ee * * STATE OF TEXAS 13:11:40-05'00' �� h Notary I.D. 13323719-3 Notary Public in and for the State of Texas 9�OF CMy Comm. Exp. July 28, 2025 After recording return to: Development Services Department Development Coordination Office 200 Texas Street Fort Worth, Texas 76102 Tier H Easement Encroachment Agreement Page 9 of 12 Revised 12/2022 EXHIBIT A Depiction and description of the Encroachment Tier II Easement Encroachment Agreement Page 11 of 12 Revised 12/2022 �.o-m ". ai rot� P:'➢M'i 6yjmn IIM" ugmnr, nV�nunV�an\ao�-m ouraia stuKaaus rr. yaarH\umW�a»-i sa ruv.00 Wi uVn f/Sl llWltti'yµ qrC NO 'tt c � all IR$ �� a� a ! 0©000000000 vC15glil ��° L _ ' Fill OUTBACK rot SFrEPL4N STEAKHOUSE 6700 NORTHWFSF LOOP 920 I r I FORT WORT$ TX ( t 1 JCL "EXHIBIT All \ 10' UTILITY EASEMENT CC #D216151560 N \ CC #D216223432 \ LOT 1 R3A, BLOCK 215 LANDMARK QUEBEC ADDITION ��II 3I \ \ CC #D216223432 Scale 1 "=30' \ ENCROACHMENT �>,3 .� \ \ � AGREEMENT pa3� LOT 1 R4A, BLOCK 2 0.009 ACRES LANDMARK QUEBEC ADDITION \ \ (404 SQ. FT.) �irk CC #D216223432 o _ ia� ��* rr / POINT OF o 4 = l BEGINNING Z 5�0 �3 GG�P 1/2" CIRS N60°37'42"E 33.52' �Zo �PAt POINT OF r,;o-\Y\ C Q COMMENCING.01 �o ABBREVIATION LEGEND ABBR. DEFINITION CIRS Iron rod with red plastic cap stamped "WAI 5714" set CIRF Iron rod with a plastic cap (noted) found CM Controlling Monument SQ. FT. Square feet TxDOT Texas Department of Transportation BMON Brass Monument CC # County Clerk's Instrument No. MAY Winkel.mann & Associates, Inc. ENCROACHMENT AGREEMENT gyp' G1 s r�R'+ 0.009 ACRES 404 SQ. FT. SHEET coWL IUa 21S ENDRtiERs ■ S4W-7 ORS �: �� , t�Q:9� f1W 1■1dLfI lfhYA 0■K. 9RI[ 911 (� 77 AO-70W •,1 ... . &U •. roue 73= tM I80-7m • .... , . �, . . T.. Fapin..a Ragpt.4n-4a 69 EpNARD JAY LUEKER' Fum R.palr.ppMrc.ix. Nc. 1008MI Q6pn 12.31.23 COPYRIGHT ? 1013.YdnkMm.nnt.tawaaalnc. • :,a ••••571 v BLOOMIN' BRANDS OF Scale !' po v:> Date: 03.23.23 2202 N. WEST SHORE BLVD., SUITE 500 9i� • RF S •: �¢ Dwa. File: 47420.GC-ESMT�ONCOR 0'S'•• TAMPA, FLORIDA 33607 Proiect No.: 47420.0C G:147412U1UC;%SURVEY1EBsoments14(420AC:-L:SMI-C)NC;OR.dwg PROPERTY DESCRIPTION (Encroachment Agreement) STATE OF TEXAS § COUNTY OF TARRANT § BEING a tract of land situated in the JOSE MARIA BASQUIS SURVEY, ABSTRACT NO. 001, in the City of Fort Worth, Tarrant County, Texas, being a portion of Lot 1 R3A, Block 2, Landmark Quebec Addition, an addition to the City of Fort Worth, Tarrant County, Texas, according to the Plat thereof recorded in County Clerk's Instrument No. D216223432, Official Public Records, Tarrant County, Texas, and being more particularly described as follows: COMMENCING at a 1/2-inch iron rod with a red plastic cap stamped "WAI 5714" set for the Southwest corner of said Lot 1 R3A, Block 2, and the Southeast corner of Lot 1 R4A, Block 2, of said Landmark Quebec Addition, on the Northwest right-of-way of Northwest Loop 820 Freeway, a variable width right-of-way; THENCE North 60 degrees 37 minutes 42 minutes East, along the Northwest right-of-way of said Northwest Loop 820 Freeway and the Southeast line of said Lot 1 R3A, Block 2, a distance of 33.52 feet to the POINT OF BEGINNING; THENCE departing the Northwest right-of-way of said Northwest Loop 820 Freeway, over and across said Lot 1 R3A, Block 2, the following courses and distances: North 15 degrees 34 minutes 40 seconds East, a distance of 40.44 feet to a point for corner; North 60 degrees 37 minutes 42 seconds East, a distance of 14.13 feet to a point for corner; South 15 degrees 34 minutes 40 seconds West, a distance of 40.44 feet to a point for corner on the Northwest right-of-way of said Northwest Loop 820 Freeway and the Southeast line of said Lot 1 R3A, Block 2; THENCE South 60 degrees 37 minutes 42 seconds East, along the Northwest right-of-way of said Northwest Loop 820 Freeway and the Southeast line of said Lot 1 R3A, Block 2, a distance of 14.13 feet to the POINT OF BEGINNING. CONTAINING within these metes and bounds 0.009 acres or 404 square feet, more or less. Bearings shown hereon are based upon an on -the -ground Survey performed in the field on the 3rd day of March, 2022, utilizing a G.P.S. bearing related to the Texas Coordinate System, North Texas Central Zone (4202), NAD 83, grid values from the plat of Landmark Quebec Addition, recorded in County Clerk's File No. D216223432, Official Public Records, Tarrant County, Texas. vWinkelmann & Associates, Inc. CONSU nwu CML ENWEERS a SURMOItB SM wuewr ►wa MNT� 3= 215 (a:..o- 7090 woos yaw nsx (m� way Tmaa Enplmm. Reg.20.bon No, BB Firm R.0W,.EWi—e No. 10086600 Erplrm 12-31-23 COPYRIGHT ® 2023, Wnlelmann B Aaaociatm, Inc I,,cale : NIA Date : 03.23.23 Dwo, File: 47420.00-ESMT-ONCOR Proied No.: 47420.0C OF GIST ...............................A '1 LEONARD JAY EKER ! �. �OFrJ7 • Qt?� •Q' ENCROACHMENT AGREEMENT 0.009 ACRES (404 SQ. FT.) SHEET 2 BLOOMIN' BRANDS OF 2202 N. WEST SHORE BLVD., SUITE 500 TAMPA, FLORIDA 33607 U;�A1412Uttx:lSunvtYtEa6emantS%4141u.Uti4-SMI-UNCUH.dxg /7�/ J / / / ffL E �L`MZ L J 40.068 09.499 Z�- / L E RCP i TORM LINE SEX 12" I i GNAT E R LINE ENCROACHMENT / r� AREA 41 Lf ' 404 SF , EXAS REGISTRATION #14199 12 IRS A SPHAL T GRAPHIC SCALE 20 0 10 20 40 i 1 Inch - 20 R. ENCROACHMENT EXHIBIT B - SHEET 1 OF 2 OF �L-w Yi DREW DONOSKY .X 125651 L. _NG N G iO3 CENTRAL DRIVE, SUITE 1406 EDFORD, TX 76021 HONE: 817.281,0572 WM.CLAYMOOREENG.COM ENCROACHMENT OUTBACK LAKE WORTH AGREEMENT FORT WORTH, TX y 5/22/23 AA seo i PROPERTY LINEW.E. I I I 675 670 665 Ge 675 670 EX 24" RCP STORM LINE I EX 12" WATER 665 I PROPOSED ELECTRIC I 660 GRAPHIC SCALE ao 0 20 4o eo TEXAS REGISTRATION #14109 1 Inch m 40 R. M AR'll■ Y ■■1� ENCROACHMENT EXHIBIT E - SHEET 2 OF 2 DREW DONOSKY .0 125651 f , 4/CENSF. ENGINEERING 1903 CENTRAL DRIVE, SUITE #406 ENCROACHMENT OUTBACK LAKE WORTH BEDFORD, TX 76021 AGREEMENT FORT WORTH, TX PHONE: 817.281.0572 W W W.CLAYM OOR[ ENG.COM 5/22/23 EXHIBIT B Certificate of Insurance Tier II Easement Encroachment Agreement Page 12 of 12 Revised 12/2022