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HomeMy WebLinkAboutContract 60606Date Received: 12/15/2023 Time Received: 7:57 a.m. Record Number: PN23-00152 City Secretary No.: 60606 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 Westover Crowley, 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 801 Rendon Crowley Road, Fort Worth, Texas 76028("Property"), being more particular described as, Lot 4, in block 2, of Mitchell Place Addition, an addition to the City of Fort Worth, Tarrant County, Texas, as recorded in Deed Records, by Instrument Number D222289231, in Tarrant County, Texas, and; WHEREAS, the City owns a water and sewer easement (the "Public Property") adjacent to the Property, recorded in the deed records of Tarrant County by instrument number D222116061; 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 gas, electric, and storm lines (the "Encroachment"). Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining the Tier 11 Easement Encroachment Agreement Page 1 of 12 Revised 12/2022 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 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, 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 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 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). 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. 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 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. 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 "A." 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 Easement Encroachment Agreement Page 4 of 12 Revises[ 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 H 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. 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 Tier 11 Easement Encroachment Agreement Page 6 of 12 Revised 12/2022 [SIGNATURES APPEAR ON FOLLOWING PAGE] Tier II Easement Encroachment Agreement Page 7 of 12 Revised 12/2022 City: CITY OF FORT WORTH V;=b� DJ Harrell (Dee 13, 2023 12:13 CST) y� _._ D.J. Harrell, Director of the Development Services Department llate Dec 13, 2023 oov nnu ATTEST: pv8 0=0 .11�S[a�tu aaIl4 nE� 454 ,.r Jannette Goodall, City Secretary Date: Dec 15, 2023 Licensee: Westover Crowley, LLC a Texas limited liability company By; G�-,, , ILIG�� Tame: Sam Brous Title: Manager Date: /J- 2? ,23 By: --- 0A9 Name: Mack House Title: Manager Approved As To Form and Legality y, VY-k Ac Jeremy Anato Mensah Assistant City Attorney Date: Dec 13, 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. '51'� n ��a� of xe"( l Dwayne ars on behalf of (Dec 13, 202311:38 C Date: Dec 13, 2023 Rebecca Owen Development Services OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Tier II Easement Encroachment Agreement Page B of 12 Revised I2/2022 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 13th day of December , 2023. x aka 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 KATHLEEN BRADFORD Not21p. Puhlic * r STATOF iE�(AS Notary. 12147147 aF My Comm. Apr.12, 2027 Page 9of12 Revised 12/2022 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of on this day personally appeared Sam Brous, 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 Westover Crowley, LLC, a Texas limited liability company (entity type), and in the capacity therein stated, GIVEN UNDER MY HAND AND SEAL OF OFFICE this ag1'v1 day of Anjt°mby--, 2023, Notary ' Pu in and for the _ State of 1> Tier I1 Easement Encroachment Agreement ►'�Y a� AMY E. RANDELL i Notary 10 #123970989 My Commission Expires - '�� October 24, 2025 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 L' (a , on this day personally appeared Mack House, 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 Westover Crowley, LLC, a Texas limited liability company (entity type), and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1 day of 1JJ, 2023. Notary P't in and for the _ State of V, al Tier II Easement Encroachment Agreement Y<►AY "�d` AMY E RANDELL Notary 10 #123970989 �y *� MY COMMission Expires of October 24, 2025 Page 10of12 Revised 12/2022 EXHIBIT A Depiction and description of the Encroachment Tier II Easement Encroachment Agreement Page 11 of 12 Revised 12/2022 N . BOHLERd 2500 NETWORK BLVD. SUITE 310 FRISCO, TX 75034 P he n¢(489)E587300 TX@HohlerEny,c, TePF No, f eti�5I i9PLs nO, o.g_ Pd9 SITE OK N�1 Yam•. LOCA TION MAP SCALE: 1"= 200' BRAKES PLUS 07.W.ro lMW Ir�r+5 LMI P.�0 VICINITY MAP � 30 15 7.5 801 W RENDON CROWLEY RDA FORT WORTH, TX 76036 VvLC Y R®AD 4001V CFZL Ai r, 1!>� {� S �T LG r BFfiiAlu ■■ p5st GFREssst _ ba'� 2g2 1 sl�RpyYfpPC euc,c RaskwER � ,ts � � C.T. CPE" }6ti / 9A`� 5E 10 X PACE p�� 2�Nb©61 J5 W�TE���DgP� LE rNsi + PRr.Gi 1 fpG1 �A�Ross��S��Y, S�pR a5E3+ER / 4 55g7q'iS N'svFt I / p�yf' �. r a, �CCE55si.N0.72 o1°Rini K2 OT 3, L p1J�CE Df Irc pG T'aN , INSTIr6061 p dZp.R. r. c.7. 3 ' EpsEla �. IN51p13� p�2PNig.1 f - �I I CF R£ ACA L 4q jV BOHLER// 29CO NLTWORK BLVO. SUITE 310 FRISCO, TX 75034 Phone f4091459 7300 TX@BahferEng.-. T PE NO. 19 IT PL3 NO, 4019-3 INgF or R£M CALL 09 y2i LL D RES DING P��7RU�I PIG - �R"� �N�na . �•INE -oF11x CFONr cpLLEh R�51df+uG BRAKES PLUS SITE PLAN 07'7zaz31 M�al�szwo cool evo 801 W RENDON CROWLEY RD r'=so FORT WORTH, TX 76036 74r 740 736 BOHLERI/ 2600 NETWORK 6LVD, SUITE 310 FRISCO, TX 15034 Phan.: J4601468.7300 )X@Bchlersng,d.w TBPR NO. IME I TBP1.6 MO, M104413 NAM GAS SERVICE ENCROACHMENT SCALE; 1'c20'HCRIZ0NTAL 1" 2' VERTICAL GAS ENCROACHMENT 1119�Z'IMeIT�m'x0 PROFILE N 2° 1° 5 Q 801 W RENDON CROWLEY RD I �. 1"=V20' FORT WORTH, TX 76036 ffm z 3 3 U I qQq W iil Z Z O 6 U O F a NQ z �r >W> m O, L. r � 740 4r ZD I 740 ]4WATE PROP.GRAOE� R/G'H/-OF-IYAY It SEWER // 735 DATUM ELEV 730.00 �E95E/dENI 100•YR HGI- j 21'-21"RCP 34'_1B"HCP EX. GR40E GLASS IV LLASS IV 0,33% Q.0.33% _ - - I 735 srA 7roRor EX. 8 - P//6L/C WAIER aw STA., I J750 WRIER hW = 731.6nf I EX. 8'PIRC SEWER X/NC SEWER /NV - 7mjldr# m z z pz J J J J LLLLLL STORM SERVICE ENCROACHMENT SCALE. 1'- 20' HORIZONTAL 1-= 2VERTICAL 1-5 BBHLER// STORM ENCROACHMENT M �:T72-VIMVPh ws4�2 *nI Ne.a 20 10 5 0 2fi00 NETWORK RLVD, SUITE 310 PROFILE FRISCO, TX 75014 801 W RENDON CROWLEY RD Phone. (40) 458-7500 Txg8ahlerE'ng..— FORT WORTH, TX 76036 �Bv"c No, � epoG I TGpis No, totGw�1 N FRI DATUM ELEV 730.00 BOBLERI 2600 NETWORK BLVO, SUITE 310 FRESCO, TX 15031 Ph.= (469)46a4300 TX@BohtorEng.com TOPE NO. 13 61 T6PL3 NO. 1019 13 two ELECTRIC SERVICE ENCROACHMENT SCALE: 1•- 20' HORIZONTAL 1� Z' VERTICAL EcEcrRIC ENCROACHMENT PROFILE 801 W RENDON CROWLEY RD FORT WORTH, TX 76036 aw I J.14=31 MG [ TXA230033A0 EXHIBIT B Certificate of Insurance Tier II Easement Encroachment Agreement Page 12 of 12 Revised 1212022