HomeMy WebLinkAboutContract 60127Date Received: 9/19/2023
Time Received: 9 :18 a.m.
Record Number: PN23-00061
City Secretary No.: 60127
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 Housing Authority of the City of
Fort Worth, Texas d/b/a Fort Worth Housing Solutions, a(n) commission ("Licensee"),
acting by and through its duly authorized President/Secretary.
RECITALS
WHEREAS, Licensee is the owner of the real property located at 8401 West
Freeway, Fort Worth, Texas 76116 ("Property"), as recorded in Deed Records as Being
Lot 2-A-R, n block 96, of Western Hills Addition, section 7, an Addition to the City of
Fort Worth by Instrument Number D223113006, in Tarrant County, Texas, and;
WHEREAS, the City owns or has an interest in a public utility easement (the
"Public Property") adjacent to the Property, and as recorded in the deed records of
Tarrant County by instrument number D 179019902 of Tarrant County; and
WHEREAS, Licensee desires to construct, place, and maintain certain
improvements which will encroach in, on, above, or below the Public Property; and
WHEREAS Licensee has received consent from the other franchise utility
companies to construct, place, and maintain the improvements within the public utility
easement; 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:
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Tier II Easement Encroachment Agreement Page 1 of 13
Revised 12/2622
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 a six foot iron fence and a two foot monument sign (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 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 such
Encroachment and the use and occupancy of the Public Property. Licensee has received
the approval and consent of certain franchise utility companies and such consents are
attached hereto as Exhibit "B." Licensee agrees that it shall secure the approval and
consent of all other 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.
Tier II Easement Encroachment Agreement Page 2 of 13
Revised 12/2022
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
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 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 Nine Hundred Dollars ($900.00).
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 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.
Tier II Easement Encroachment Agreement Page 3 of 13
Revised 12/2022
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 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.
9.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, 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 HIND 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. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, 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.
Tier II Easement Encroachment Agreement Page 4 of 13
Revised 12/2022
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 "C" 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.
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.
Tier II Easement Encroachment Agreement Page 5 of 13
Revised 12/2022
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.
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.
Tier II Easement Encroachment Agreement Page 6 of 13
Revised 12/2622
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]
Tier II Easement Encroachment Agreement Page 7 of 13
Revised 12/2022
City:
CITY OF FORT WORTH
BY: DJ Harrell (Sep 19, 2023 08:04 CDT)
D.J. Harrell, Director of the
Development Services Department
Date: Sep 19, 2023
pF FORT �°o
ATTEST:
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ga/-
PV8 �=d
P P�Il4 nE4pbbgd
Jannette Goodall,
City Secretary
Date:Sep 19, 2023
Licensee:
Housing Authority of the City of Fort
Worth, Texas dba Fort Worth Housing
Solutions, a Texas public housing authority
By:
ame: ary-Ma ret L mons
Title: President/Secretary
Date: August 24, 2023
Approved As To Form and Legality
Jeremy Anato-Mensah
Assistant City Attorney
Date: Sep 11, 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.
Rebecca Diane Owen (Sep 11, 2023 09:02 CDT)
Date: Sep 11, 2023
Rebecca Owen
Development Services
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Tier II Easement Encroachment Agreement Page 8 of 13
Revised 12/2022
rimer:�r.�v�nvr���c�y�>rn�rl MilIJAMAM
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 tbis 19th day of
September . 20 23
2�PRYa�e`� KATHLEEN BRADFORD ;
Notary Public
. * STATE OF TEXAS
''FoF� P Notary LID. 12197197
My Comm. Exp. Apr. 12, 2027 '
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 Easement Encroachment Agreement Page 9 of 13
Revised 12/2022
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
TPy..P , on this day personally appeared Mary -Margaret Lemmons,
President/Secretary (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 Housing Authority
of the City of Fort Worth, Texas d/b/a Fort Worth Housing Solutions, a commission
(entity type), and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of AUJO5�,
20
I
Notary Public in and for the
State of I Z xa 5
=�Ppr °Gem EVA C KEY =
Notary !D #10943269
My Commission Expires
August 15, 2025 =
Tier II Easement Encroachment Agreement Page 10 of 13
Revised 12/2022
EXHIBIT A
Depiction and description of the Encroachment
Being Lot 2-A-R, in Block 96, of WESTERN HILLS ADDITION, SECTION 7, an
Addition to the City of Fort Worth, Tarrant County, Texas, according to the Map thereof
recorded in Volume 388-126, Page 69, of the Map Records of Tarrant County, Texas
Tier II Easement Encroachment Agreement Page I 1 of 13
Revised 12/2022
EXHIBIT B
Franchise Utility Letters
Tier II Easement Encroachment Agreement Page 12 of 13
Revised 12/2022
TMOS
energy
August 31, 2023
Logan Hampton
Ojala Partners, LP
2501 N. Harwood St., Suite 2400
Dallas, TX 75201
Re: Utility Easement Encroachment
8401 W. Freeway
Dear Mr. Hampton,
Upon your request, I have reviewed your request for encroachment into utility easement
at above location. Atmos does not show any facilities in this easement at present. Atmos
Energy does not object to the encroachment located inside property line back of Calmont
Ave right of way. Verification of the gas line locations can be obtained through 811 Call
Before You Dig. Any damage caused to Atmos Energy facilities due to such
encroachment will be billed to the party causing the damage.
If you have any questions, please contact me at 817-988-8079.
Sincerely,
1-W & 4, � �
Bob Davison
Sr. Project Manager
Atmos Energy Corporation
Address, City, State ZIP
P 000-000-0000 F 000-000-0000 atmosenergy.com
n l
May 18, 2023
AT&T Texas
Melissa McElyea
117 W Columbia St
Weatherford, TX 76086
817 718-4055
RE: Tarrant County — Western Hills Addition Section 7
8401 West Fwy Fort Worth Tx, 76116
10-ft Utility Easement Encroachment Request
Lot 2-A-R, Block 96 surrounding west side of property
In response to the request for the encroachment on a portion of the 10-ft Utility Easement along
the surrounding west side of the property, Southwestern Bell Telephone Company, d/b/a AT&T
Texas, has no objections to the requested encroachment for fence shown on the attached sketch.
Plat found in Tarrant County Clerk File Recorded in Volume 388-126, Page 69.
It is not the intent of this letter to waive any rights granted to AT&T in the easement or right-of-
way except to permit this encroachment. AT&T shall continue to have unrestricted access to, on
and across the easement/right-of-way for installation, repairs, replacement, or upgrades to
facilities.
There are currently underground facilities within the area. Exercise extreme caution with respect
to such facilities. Contact Texas811 for underground locates before any digging is done. Costs
of any damages to facilities would be at your expense.
Please let me know if you have any questions.
Sincerely,
Melissa McElyea
AT&T — Manager Engineering — Right -of -Way
817-718-4055
ms2841 @att.com
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ReWlzatlon 2011.
Date: June 22, 2023
Customer 1 Contractor Name: Fort Worth Housing Solutions
Street Address: 8401 West Fwy
City 1 State 1 Zip: Fort Worth, TX 76116
Re: Iron Fence Encroachment into an existing 5' foot utility easement located on the property
known as Lot 2-A-R, Block 96 of the Western Hills Addition, Section 7 in the city of Fort Worth,
Tarrant County, TX. PT# 2023-3372
Dear Sir:
I have received your request to construct an iron fence at the above referenced location. A
portion of the proposed iron fence will be within a Platted Utility Easement as shown on the Plat
provided. At no time should any electrical source box (transformer, hand -hole or pedestal) be
fenced in or encroached upon.
Oncor does have facilities located within the above -mentioned easement. it is not the intent of
this letter to waive any rights granted to Oncor in said easement except to permit this
encroachment set out hereinabove. Also, this letter is not intended to release the builder of this
encroachment, or the present owner, or future owners of the property from any liability arising out
of the location of this encroachment in the easement.
Oncor shall continue to have unrestricted access to, on and across the easement. It is
understood by owner, that when the electrical facilities in the easement area need repaired,
replaced or upgraded, it will be owner's responsibility to remove any obstruction that interferes
with Oncor's ability to perform the necessary work. Oncor maintains the right to utilize the entire
easement for its needs, and will not be responsible for any damages.
Owner acknowledges and understands that Oncor maintains overhead and/or underground
electrical facilities within the easement. State law requires contacting Dig Tess by calling 811 for
underground equipment to be located at least two (2) days before you dig. Dig Tess does not
mark a precise location but is usually within four (4) feet of the actual location. Owner agrees to
exercise extreme caution with respect to such electrical facilities.
Please sign below confirming that you understand and agree to the requirements.
If you have any questions or need additional information, please contact the Oncor office at
(817) 215-5257.
Sincerely,
Charlene Dunbar-Oncor Row Analyst
Fort Worth Housing Solutions (Date)
Spectrum►
May 17, 2023
Logan Hampton
Ojala Partners LP
2501 N. Harwood St, Suite 2400
Dallas, TX 75201
SUBJECT: Encroachment of 8401 West Freeway, Fort Worth, TX 76116
Spectrum Communications hereby grants a 10ft encroachment for the purpose of building a 6ft iron fence
around property perimeter which will encroach into a portion of the rear easement 10 ft General Utility
Easement associated with the property located at 8401 West freeway, within the City of Fort Worth, Texas
76116. Spectrum Communications reserves the right to have access to any other applicable utility
easements on the property for the purpose of future construction or maintenance. The owner and/or
lessee of said property may also be responsible for the relocation/removal of any structure interfering
with access to these easements, if necessary.
Spectrum Communications currently does have facilities within this easement. If it has not already taken
place, please call 1-800-DIG-TESS to have facilities marked and located within affected easements before
any excavations are started.
For future reference, please send all utility coordination, abandonments, encroachments, plat
signatures, or serviceability requests, or notices of relocation to forcerelos@kinetic-eng.com. Please
share this information with whoever needs these services.
Sincerely,
Schrw
pear _ _►
Troy Hopson I Business C+evebpmenl Specialist I (0) 817-298-3554 Ce$1682-999-2989
8545 Airport Freeway #108 I North Richland Hills I TX 76180
EXHIBIT C
Certificate of Insurance
Tier II Easement Encroachment Agreement Page 13 of 13
Revised 12/2022