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HomeMy WebLinkAboutContract 61384Date Received: 5/8/2024 Record Number: PN23-00051 Time Received: 4:09 p.m. City Secretary No.: 61384 PUBLIC PROPERTY RIGHT-OF-WAY 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 Star Dragon Property, LLC, a 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 4401 Fossil Creek Boulevard, Fort Worth, Texas 76137 ("Property"), being more particular described as, being a portion of that tract of land situated in the James M. Robinson Survey, Abstract Number 1345, by Instrument Number D217192952, 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, Volume 388, Page 42; 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 storm lines (the "Encroachment"). Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining the Encroachment Tier II ROW Encroachment Agreement OFFICIAL RECORD page 1 of 13 CITY SECRETARY Revised 12/2022 FT. WORTH, TX 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 ROW Encroachment Agreement Page 2 of 13 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). 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. Tier II ROW Encroachment Agreement Page 3 of 13 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 ROW Encroachment Agreement Page 4 of 13 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 ROW Encroachment Agreement Page 5 of 13 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 II ROW Encroachment Agreement Page 6 of 13 Revised 12/2022 [SIGNATURES APPEAR ON FOLLOWING PAGE] Tier II ROW Encroachment Agreement Page 7 of 13 Revised 12/2022 City: CITY OF FORT WORTH V ar By: Dalton Hrel[lay 8, 202414:16 CDT) D.J. Harrell, Director of the Development Services Department Date: May 8, 2024 ATTEST: �n AoF�°prII� pIIIlb nEXPSaa Jannette Goodall, City Secretary Date: May 8, 2024 Tier II ROW Encroachment Agreement Licensee: Star Dragon Property, LLC a Texas limited liability company By: N e: He Reg Zhou Title: Manager Date: 3 1X `zbZ- f PLEASE SEE ATTACHED Cia Compliant Notarial Certificate dy- CA Civil Code Sec. 1189 JURAT - CA Govt Code Sec. 8202 Approved As To Form and Legality Jeremy Anato-Mensah Assistant City Attorney Date: May 6, 2024 ;� G3ji21�>'J 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 Owen (May 6, 2024 15:21 CDT) Rebecca Owen Development Services Date: May 6, 2024 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 8 of 13 Revised 12/2022 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Los Angeles ) On 03 i 12-1202A before me, S. KAWIBAWA, Notary Public Date Here Insert Name and Title of the Officer personally appeared ftu_7 9EC1 27RO'J NameK of Signer} , who proved to me on the basis of satisfactory evidence to be the person(zl whose name.( is/aKe subscribed to the within instrument and acknowledged to me that he/ire/ti 6y executed the same in his/W/) eir authorized capacity('is), and that by his/Wr/tIAir signatureKon the instrument the person.(), or the entity upon behalf of which the personA acted, executed the instrument. 1 v S.6WIBAWA d __�� m' '� z COMM. #2361889 z Notary Public . California % "' Los Angeles County ' om 9 ` <..,,� My Cm, Expires Jul 16, 2025 Place Notary Seal Above certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Signature of Notary Public OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Vkke_ wevmm f ki( m--6�'W&nejr- Document Date: 0' 11212c� Signer(s) Other Than Named Above: !► litE Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: c�:.����-:c;�c����c:�c;���-�;.�::c:�c.�:���=v�c�%F:�r-F•.�c;�c�;���-o�c�c�=-u�c.�v�o._�=w.�c>�c.�;v�c���:;��;e;�;u� ©2015 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 7—TH.[S PAGE-FURZ:ITYVt-FUR l-WURTH-UFFII:E-U5E-JNLY 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 8th day of May , 2024 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 ;�=oaPRYp�g, WENDY L BWDSLEE Notary Public * * STATE OF TEXAS I.D.Notary My Comm.Exp. J lY 28, 2025 Tier II ROW Encroachment Agreement Page 9 of 13 Revised 12/2022 EXHIBIT A Depiction and description of the Encroachment Tier II ROW Encroachment Agreement Page 11 of 13 Revised 12/2022 FOSSIL CREEK #1 ADDITION BLOCK 1 LOT 1 R INST. # D213284434 C.R.T.C.T. Q M N 0 N E it P E LOTO N I I LAND SOLUTIONS 0 0 d FOSSIL CREEK BLVD (120' RIGHT -OF WAY) IROW ENCROACHMENT' r Q U� xp U � Qx w U m _ I Z orf O I v EXHIBIT A BPA21001 ROW ENCROACHMENT EXHIBIT FORT WORTH -TEXAS MARCH 2O23 z O H 0 U Z U o' 1 oo' 0 0 a m m C1 ■ c7 Description of a Right -of -Way Encroachment BEING a tract of land situated in the James M. Robinson Survey, Abstract Number 1345, City of Fort Worth, Tarrant County, Texas, being a portion of Fossil Creek Boulevard (a 120 foot right-of-way) recorded in Volume 388-140, Page 40, County Records, Tarrant County, Texas, and being more particularly described by metes and bounds as follows: COMMENCING at a 1/2 inch iron rod with plastic cap stamped "Halff', found in the south right-of-way line of said Fossil Creek Boulevard and the west right-of-way line of North Beach Street (a 120 foot right-of-way), and being the north line of Lot 1, Block 1, Fossil Creek Addition, Phase 1, Section 1, an addition to the City of Fort Worth, Tarrant County, Texas, recorded in Volume 388-140, Page 40, said County Records; THENCE S 89024'31" W, 6.56 feet, with said south right-of-way line and the north line of said Lot 1, to the POINT OF BEGINNING; THENCE S 89024' 31 "W, 6.00 feet, continuing with said common line, from which a 1 /2 inch iron rod with plastic cap stamped "Halff'bears S 89°24'31"W, 110.46 feet; THENCE N 00011'48"W, 8.00 feet, departing said common line; THENCE N 89048' 11 "E, 6.00 feet; THENCE S 00011'48"E, 7.96 feet to the Point of Beginning and containing 48 square feet of land more or less. "Integral parts of this document" 1. Description 2. Exhibit Peloton Job No. BPA21001 Tracking No. na FTW June 15, 2023 G:\JOB\BPA21001_ACN FOSSILCREEK\2_SRVY\ESMTS\LEGALS\BPA21001_EA2.DOCX Page I of 2 Coor&,ote the Texos System 8os1s C Bt of Zone 42p2, NAD 83 No IRF - iron Rod Found .Boulevard Creek Fossll foot fight -of -way) 0 (120 -140, Pg• Vol. 3g R. T.0• T. 40 20 0 FEET GRAPH1C SOAVE 1N o{ this document, „Inte9rol P° oescft'0`n 2, E,t iibit N1 "O IIN i� N89 '11"E "E 6 00 SQO° 11 48 ��qC� o 0 11'48"W 7.96 g.00' IRF c�89° 24' 31, 4 7z� point of 6.00' IRF 0- t of �� COMM i oln ttl \ asr Beginning 's�•,� � ear\ t 1, Block Lo Addition, �\ \ F ossk Cr 1e Section 1 \ o Ph°3gg-140, py. 40 \� \ Vol. C.R A ° a'—. 0 � v OF Q . a t , ►z, .... :.... ..... ............. `.: .Exhibit ° meY1 TODD A. BRUdI..... OOLCh ;9 •4940 a i tj Abstroot 23 peloton Lon Solut _ �_ a J n Sorvey, �exos- 20 •••..�?,ss,. 1vr t mes M Robinso rant my, coavrantc seiav� {� i1 you n the Jaof Fort Worth, Tar Nurnbert 1345, City N 0, m > a LS FIRM RED N0.177700 jo TBpELS FOSSIL CREEK BLVD (120' RIGHT -OF WAY) EX. 18" RCP W-0251 EX. 20' RECESSED_. 11 LET 77 .. b• E_X _-:L--_-- SD-D STA 0+00.0, CONNECT TO EX CURB INLET I(1 BEGIN PRIV. 18"' RCP I �' FL 18" IN=579.00 . i E li! P E LOTO N LAND SOLUTIONS 0 6 a TT` PfCAL MANHOLE/PIPE PENETRATION PER COFW DETAIL D415. PART OF THE CFA AND WILL BE INSPECTED BY THE CITY. THE f>j( REST OF THE STORM LINE IS PRIVATE QRY OTHERS) —EX. 10" WATERLINEZTUB (X-09251) F-251 0 ,77( SD-D 18" RCP (PRIV.) ENCROACHMENT \AGREEMENT REQ'D ; -CSS BACKFILL BY OTHERS \ \. X SD-D 595 F= wa a J W co I IRO0 ED E LL O I(IaNv G 590 0oz W Vgo au LW �DWm Wo2^- o0_ Q itU � �q LU .OW gm oL Ou>�OW2 ti �wO iL5�?(Um TYPICAL MANHOLE/PIPE PENETRATION PER COFW DETAIL G415 CONNECTION IS PART OF THE CFA AND WILL BE INSPECTED BY THE CITY. THE REST OF THE STORM LINE IS PRIVATE (BY OTHERS) 580 I' 575 I 1 ENCROACHMENT AGREEMENT AS REQUIRED 570 � # -0+50 0+00 `CSSBACKFILL — BY OTHERS I I I I I 05=2.01 CFS Q,00=3.46 CFS o VS=3.56 FPS Vlm=4.21 FPS L4IIIII 1+00 595 590 0 19 U 585 a m m E U 0 580 0 N 0 M N O N f0 575 570 EXHIBIT C o ■Z U BPA21001 of 40' s STORM DRAIN PLAN & PROFILE a m FORT WORTH -TEXAS 9 ^n MARCH 2O23 Pin ■0 EXHIBIT B Certificate of Insurance Tier II ROW Encroachment Agreement Page 12 of 13 Revised 12/2022