HomeMy WebLinkAboutContract 60418Date Received: 11/07/2023 Record Number: PN23-00148
Time Received: 7:16 a.m. City Secretary No.: 60418
PUBLIC PROPERTY RIGHT-OF-WAY 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 Village Homes, L.P., a(n) Texas
limited partnership ("Licensee"), acting by and through its duly authorized President.
RECITALS
WHEREAS, Licensee is the owner of the real property located at 332 Nursery
Lane, Fort Worth, Texas 76114 ("Property"), being more particular described as, Lot
10R, Block 3, Deaver's Addition, by Instrument Number D221334964, in Tarrant
County, Texas, and;
WHEREAS, the City owns a right-of-way (the "Public Property") adjacent to
the Property, recorded in the plat records of Tarrant County as plat number FP-22-036;
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 a connecting storm drain to a public inlet (the
"Encroachment"). Upon completion of the Encroachment, Licensee agrees to be
responsible for maintaining the Encroachment within the Public Property. Licensee shall
Tier II ROW Encroachment Agreement OFFICIAL RECORD Page 1 of 12
CITY SECRETARY Revised 12/2022
FT. WORTH, TX
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, 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
Tier II ROW Encroachment Agreement Page 2 of 12
Revised 12/2022
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). Additionally, Licensee
agrees to pay a fee in the amount of $2.00 per square/linear foot of the encroachment area
upon execution of this Agreement and annually thereafter.
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.
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.
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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 II ROW Encroachment 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.
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.
Tier II ROW Encroachment Agreement Page 5 of 12
Revised 12/2022
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]
Tier II ROW Encroachment Agreement Page 6 of 12
Revised 12/2022
City:
CITY OF FORT WORTH
By: DJ Harrell (Nov 6,202315:10 CST)
D.J. Harrell, Director of the
Development Services Department
Date: Nov 6, 2023
ATTEST:
Jannette Goodall,
City Secretary
Date: Nov 7, 2023
Po�FORr�°a
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Licensee:
Village Homes, L.P.
a Texas limited partnership
By: DR Management, INC.
A Texas corporation
its general partner
By: /1 4" '/
Name: Michael Dike
Title: Preside%'t
Date: /!7,siL3
/ I
Approved As To Form and Legality
Jeremy Anato-Mensah
Assistant City Attorney
Date: Nov 6, 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
Rebecca Diane Owen (Nov 6, 2023 09:07 CST)
Rebecca Owen
Development Services
Date: Nov 6, 2023
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Tier II ROW Encroachment Agreement Page 7 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 6th day of
November , 20 23 .
WendL� Digitally signed by
Y Wendy L. Beardslee
Beardslee Date:2023.11.06
16:42:46-06'00'
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 ROW Encroachment Agreement
WENDY L BEARDSLEE
a Notary Public
* * STATE OF TEXAS
Notary I.D. 13323719-3
My Comm. Exp. July 28, 2025
Page 8 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
-(e xa s , on this day personally appeared Michael Dike, Persistent (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 Village Homes, L.P., a Texas limited
partnership (entity type), and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 3`-4 day of
JENNIFER BARNES OLSON
( J :_•: *: My Notwy ID # 126W188
Expires February 14, 2026
Notary Pu c in and for the
State of-'f5cct3
Tier II ROW Encroachment Agreement Page 9 of 12
Revised 12/2022
EXHIBIT A
Depiction and description of the Encroachment
Tier II ROW Encroachment Agreement Page 10 of 12
Revised 12/2022
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ENCROACHMENT
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INLET (K-2787)
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TEXAS REGISTRATION #14199
ENGINEERING
GRAPHIC SCALE
20 0 10 20 40
1 inch - 20 R.
ENCROACHMENT EXHIBIT B - SHEET 1 OF 2
OF T
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CLAY CRISIY
A
109800
1903 CENTRAL DRIVE, SUITE #406
BEDFORD, TX 76021
PHONE: 817.281.0572
www CLAYMOOREENG.COM
ENCROACHMENT
AGREEMENT
THE GROVE 2
FORT WORTH, TX
10/ 13/2 3
STORM LINE A
590 590
ROW LINE
_ LIMIT OF
ENCROACHMENT
585 I 585
.I
580
580
EXISTING
121 LF OF
MANHOLE
21" RCP @ 0.35%
575
575
PROPOSED
I- STORM
LINE
570
570
0+00
GRAPHIC SCALE
40 0 20 40 80
TEXAS REGISTRATION #14199
1 inch = 40 ft."
ENCROACHMENT EXHIBIT B - SHEET 2 OF 2
ENGINEERING
1903 CENTRAL DRIVE, SUITE 9406
ENCROACHMENT THE GROVE 2
BEDFORD, TX 76021
AGREEMENT FORT WORTH, TX
PHONE: 817.281.0572
W W W.CLAYMOOREENG. COM
OF
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CLAY CRISTY
109800
0/ 13/2 3
LOT 16
LOT 16
I
BLOCK 3 DEAVERS ADDITION
VOL 1811 P 583 DRTC
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j FIRST AFRICAN
BAPTIST CHURCH
D206370826 DRTC
{
i EXIST 1OFT
i DRAINAGE EASEMENT SCALE
D22136509 DRTC 1"=5'
I1
Fn FeNCY
IFO 100d nail _ I
FD 60d nail
� ' 5.00
POST S89'09'52"E
-
SO'50'08"W
18" RCP STORM DRAIN PIPE
ENCROACHMENT AREA 5 SF
EXIST DROP /
--�INLET lJ\(
CONC APPRON
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SUR4`��°
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J B DAMES III RPLS- 4368
BASED ON FIELD SURVEY MADE
IN DECEMBER 2021 AND
MONUMENTS S RECOVERED ON
OCTOBER 11, 2023
J" B" DAVIES, INC.
P.O. BOX 6835
FORT WORTH, TEXAS 76115
817-335-3154
TSPLS NO. 10159100
EXIST CURB
SCOTT ROAD
CONC PAVEMENT
EXHIBIT'A'
18" RCP STORM DRAIN PIPE
ENCROACHMENT AREA
SCOTT ROAD RIGHT OF WAY
DEAVERS ADDITION
FORT WORTH TARRANT COUNTY TEXAS
according to the Plat recorded in Volume 1811,
Page 583 of the Deed Records of
Tarrant County, Texas
OCTOBER 13, 2023
CENTERLINE DESCRIPTION FOR
181NCH RCP STORM DRAIN PIPE ENCROACHMENT AREA
SCOTT ROAD RIGHT OF WAY
DEAVERS ADDITION
FORT WORTH TARRANT COUNTY TEXAS
BEING a centerline description of 2ft wide, 18inch RCP Storm Drain Pipe
Encroachment Area, said area being a part of the Scott Road right-of-way and adjacent
to a 1 Oft wide Drainage Easement as described in D22136509 of the Deed Records of
Tarrant County (DRTC) a part of Lot 16, Block 3, Deavers Addition, Fort Worth, Tarrant
County, Texas, according to the plat recorded in Volume 1811, Page 583 DRTC, said
line is tied to the Texas Coordinate System, North Central Zone, NAD83, using RTK
Surveying methods, bearings are grid and distances are horizontal ground
measurements, said encroachment area is 1ft either side of the following described line:
BEGINNING at a point in the north line of the said Scott Road being S89°09'52"E, 5.00ft
from a found 100d galvanized spike for the southwest corner of the above described
Drainage Easement and the said spike being S89009'52"E, 8.19ft from the south west
corner of the said Lot 16;
THENCE S0050'08"W, 2.5ft to the face of an existing concrete drop inlet for a total of 5
square feet of encroachment area_
J B Davies, Inc
October 13, 2023
TXBPE&LS Firm No 10159100
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EXHIBIT B
Certificate of Insurance
Tier II ROW Encroachment Agreement Page I 1 of 12
Revised 12/2022
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