HomeMy WebLinkAboutContract 53561-CA3Date Received: 6/17/2024
Time Received: 10:10 a.m.
Record Number: PN24-00006
City Secretary Number: 53561-CA3
ASSIGNMENT AND CONSENT OF ENCROACHMENT AGREEMENT
City Secretary Contract No. 53561-CA2
THIS ASSIGNMENT OF ENCROACHMENT AGREEMENT ("Assignment") is
made and entered into as of this 17tn day of June , 2024 , by and between the CITY
OF FORT WORTH, a Texas home -rule municipal corporation (" Lt "), D. R. Horton, Inc. a
Delaware for -profit corporation ("Assignor"), and Oak Court Residential Community, Inc., a
Texas nonprofit corporation ("Assignee"). Sometimes herein City, Assignor, or Assignee may
also be referred to individually as a "Party" or collectively as the "Parties."
WITNESSETH:
WHEREAS, the City entered into an Encroachment Agreement, City Secretary Contract
No. 53561-CAl (the "Encroachment Agreement"), on the 4th day of February, 2021, with
Assignor, the owner of certain real property more particularly described in the attached Legal
Description (the "Property") located adjacent to or near the City's right-of-way on which the
encroachments are located. The encroachments are more particularly described in the
Encroachment Agreement, attached hereto as "Exhibit A" and incorporated herein by reference
for all purposes, and are referenced therein and herein as the "Improvements";
WHEREAS, the Encroachment Agreement was recorded the 4th day of February, 2021,
as Instrument No. D221033588 in the Real Property Records of Tarrant County, Texas;
WHEREAS, the Encroachment Agreement was assigned by Brewer & Hale, LLC,
then -assignor, to D.R. Horton, Inc., then -assignee. The first assignment was executed on
February 2, 2021 as CSC No. Instrument No. 53561-CAI;
WHEREAS, Assignor desires to assign the Encroachment Agreement to Assignee.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the above and foregoing premises and
the mutual covenants, terms, and conditions herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
1. Assignor hereby assigns, transfers, and conveys all rights and interests and
delegates it duties and obligations under the Encroachment Agreement to Assignee. OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Encroachment Assignment Agreement Page 1 of 9
Rev 12/2022
2. Assignee hereby accepts the Assignment granted herein, and assumes all of
Assignor's rights, duties, and obligations arising under the Encroachment Agreement.
3. Assignor has full right, power, and authority to enter into this Assignment, to
make the representations set forth herein, and to carry out Assignor's obligations hereunder.
Assignee has the full right, power, and authority to enter into this Assignment, to make the
representations set forth herein, and to carry out Assignee's obligations hereunder.
4. The effective date of this Assignment shall be the date of its execution by the City
(the "Effective Date"). All rights, duties, and obligations under the Encroachment Agreement
arising, accruing, or relating to the period before the Effective Date are allocated to Assignor,
and all rights, duties, and obligations arising, accruing, or relating to the period thereafter shall
be allocated to Assignee.
5. Except as otherwise expressly set forth in this Assignment, Assignor will be
discharged from any and all further obligations under the Encroachment Agreement as of the
Effective Date.
6. Assignor represents, warrants, and covenants with City and Assignee that as of
the Effective Date, Assignor is not in default of any of its obligations contained in the
Encroachment Agreement.
7. City hereby consents to this Assignment upon the terms and conditions set forth
herein. Unless and until City has executed this Assignment, it is of no effect. The consent
granted herein should not be construed as consent to any further assignments. The failure or
delay of City in seeking to enforce any provision of the Encroachment Agreement or this
Assignment shall not be deemed a waiver of rights or remedies that City may have or a waiver of
any subsequent breach of the terms and provisions therein or herein contained.
8. Any notice given by any Party to another Party must be in writing and shall be
effective upon receipt when (i) sent by U.S. mail with proper postage, certified mail return
receipt requested, or by a nationally recognized overnight delivery service, and (ii) addressed to
the other Party at the address set out below or at such other address as the receiving Party
designates by proper notice to the sending Party.
City
Development Services Department
200 Texas Street
Fort Worth TX 76102
Attention: Director
Encroachment Assignment Agreement Page 2 of 9
Rev 12/2022
Assignor
D. R. Horton - Texas, Inc
a Texas Limited Partnership
by D.R. Horton, Inc
a Delaware Corporation
Its Authorized Agent
6751 North Freeway
Fort Worth, TX 76131
Assignee
Oak Court Residential Community, Inc.
a Texas nonprofit company
5757 Alpha Road, Suite 680
Dallas, TX 75240
9. Except as herein otherwise provided, this Assignment will be binding upon and
inure to the benefit of the Parties and their respective successors and assigns.
10. Assignee shall cause this Assignment to be filed of record at Assignee's expense
in the Real Property Records for Tarrant County, Texas.
11. The Certificate of Insurance for the Assignor attached as Exhibit "B" to the
Encroachment Agreement is hereby deleted and replaced with the attached Certificate of
Insurance from the Assignee as "Exhibit B, Revised."
12. All terms and conditions of the Encroachment Agreement not amended herein
remain unaffected and in full force and effect, are binding on the Parties, and are hereby ratified
by the Parties. Capitalized terms not defined herein shall have meanings assigned to them in the
Encroachment Agreement.
13. This Assignment may be executed in multiple counterparts, each of which shall
be deemed an original, and all of which, when taken together, shall constitute one and the same
document which may be evidenced by one counterpart.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
Encroachment Assignment Agreement Page 3 of 9
Rev 12/2022
ASSIGNOR:
D. R. Horton - Texas, Inc
a Texas Limited Partnership
`by D.R. Horton, Inc
a Delaware Corporation
its Authorized Agent
By:
Name: Justin Bosworth
Title: Assistant Secretary
Date: '� /u / /
STATE OF - §
COUNTY OF TWY Ir §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
on this day personally appeared Justin Bosworth, Assistant 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 D. R. Horton, Inc., a Delaware for -profit corporation (entity type), and in
the. capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of Rb., 2024.
*µ16Y Pv KATtE SABiN
_ _Notary Public, Stets of Texas
Notary Public in and for the
�ZComm. Expires 11-27-2026
State of —ri{ ` Notary ID 130023823 `
Encroachment Assignment Agreement Page 4 of 9
Rev 12/2022
ASSIGNEE:
Oak Court Residential Community, Inc.
a Texas nonprofit corporation
By:�
Name: Chelsea Bargsley
Title: President
Date:
STATE OF 'z%1-S §
COUNTY OF 9-AIL-S §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
1-4469-B , on this day personally appeared Chelsea Bargsley, President (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 Oak Court Residential Community, Inc., a 'Texas nonprofit corporation (entity
type), and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this Vt day of RrA 2024.
Encroachment Assignment Agreement
dkmd&wdLw--
TAmISHA ALFORD
Notary ID #133476932
�. My Commission Expires
December 6, 2025
Page 5 of 9
Rev 12/2022
Notary Public in and for the
State of Texas
APPROVED AS TO FORM AND
LEGALITY:
Jeremy Anato-Mensah, Assistant City Attorney
City Attorney's Office
Date: Jun 11, 2024
poioann
Foar�r°•°a
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ATTEST:
}a .,��S2oxn aaayn�zosaa`
Jannette Goodall
City Secretary
(M&C not Required)
Date: J u n 17, 2024
CITY OF FORT WORTH
Dalton H` ay rrell{1un 14,202415:44 CDT)
DJ Harrell, Director
Development Services Department
Date: Jun 14, 2024
Contract Compliance Specialist:
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.
Date: Jun 11, 2024
Rebecca Owen
Development Manager
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Encroachment Assignment Agreement Page 6 of 9
Rev 12/2022
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on J u n e 14, 2024 by D. J.
Harrell, the Director of the Development Services Department of the City of Fort Worth, a Texas
municipal corporation on behalf of the City of Fort Worth.
o�Pava�e' KATHLEEN BRADFORD
a Notary Public ,
• • STATE OF TEXAS
Notary I.D. 12197197
My Comm. Exp. Apr. 12, 2027 '
Kam 2+.�euG
Notary Public, State of Texas
Encroachment Assignment Agreement
Page 7 of 9
Rev 12/2022
EXHIBIT A
ORIGINAL AGREEMENT WITH ATTACHED EXHIBITS
Encroachment Assignment Agreement Page 8 of 9
Rev 12/2022
av���56 1
�E���o 2020
�E02 0' ,4 1\" EASEMENT ENCROACHMENT LICENSE AGREEMENT
cSEC�, 0 Commercial
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 Managcr, Assistant City Manager, or
Planning and Development Director, and BREWER & HALE, LLC, a limited liability
company ("Licensee"), owner of the real property located at 6951 JOHN T. WHITE,
Fort Worth, Texas 76120 ("Property"), acting by and through its duly authorized
Manager..
RECITALS
WHEREAS, Licensee is the owner of certain real property situated in the City of
Fort Worth, Tarrant County, Texas, more particularly described in the attached Legal
Description of the Property, attached as "Exhibit C" and incorporated herein for all
purposes; and
WHEREAS, the City has a water and sewer easement (the "Easement") in the
Property as shown on the map attached to this Agreement as "Exhibit A," which is
incorporated herein for all purposes; and
WHEREAS, Licensee desires to construct, place, and/or maintain certain
improvements which will encroach in, on, above, or below the City's 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:
AGREEMENT
1.
The City, in consideration of the payment by the 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 Easement as described in and at the location shown on
Exhibit A, but only to the extent shown thereon, for the purpose of constructing a fence
(the "Encroachment"). Upon completion of the Encroachment, Licensee agrees to be
responsible for maintaining the Encroachment within the Easement. Licensee shall not
expand or otherwise cause the Encroachment to further infringe in or on City's Easement
beyond what is specifically described in the exhibit(s) attached hereto.
l
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Easement Encroachment Agreement - Commercial Page 1 of 12
ROV-19ed' 1212018
M
All construction, maintenance, or operation in connection with such
Encroachment, use, and occupancy shall comply and be performed in strict compliance
with this Agreement and with the Charter, Ordinances, and Codes of the City, and in
accordance with the directions of the Director of the Transportation and Public Works
Department or the Director of the Water Department, or their duly authorize4i
representative. Prior to the construction of the Encroachment, Licensee shall submit all
plans and specifications to the applicable Director or duly authorized representative.
Licensee shall not commence construction of the Encroachment until such approval shall
be indicated in writing by the applicable Director or authorized representative. However,
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0
Licensee, at no expensc to the City, shall make proper provisions for the
relocation and installation of any existing or future utilities affected by such
Encroachment, use, and occupancy, including securing the approval and consent of the
appropriate utility companies and agencies of the State and its political subdivisions. In
the event that any installation, reinstallation, relocation, or repair of any existing or future
A"YM"rrVrUTV1nV-p a Wi,--
expense is made more costly by virtue of the construction, maintenance, or existence of
the Encroachment and use, Licensee shall pay to the City an additional amount equal to
such additional cost as reasonably determined by the Director of Transportation and
Public Works or the Director of the Water Department, or their duly authorized
representative.
9
Licensee agrees that the City may enter and utilize the referenced areas at any
time for the purpose of installing, repairing, replacing, or maintaining improvements to
its public facilities or utilities necessary for the health, safety, and welfare of the public,
or for any other public purpose. The City shall bear no responsibility or liability for any
damage or disruption or other adverse consequences resulting from the Encroachment
installed by Licensee, but the City will make reasonable efforts to minimize such
damage.
R1
Upon termination of this Agreement, Licensee shall, at the option of and at no
expense to the City, remove the Encroachment and restore the Easement to a condition
acceptable to the Director of Transportation and Public Works or the Director of the
Water Department, or their duly authorized representative, in accordance with then -
existing City specifications. It is undcrstood and agrccd to by Licenscc that if this
Agreement terminates and Licensee fails to remove the Encroachment as directed and
restore the Easement, Licensee hereby gives the City permission to remove the
Easement Encroachment Agreement - Commercial Page 2 of 12
Revised 12/2018
Encroachment and any supporting structures and assess a lien on the Property for the
costs expended by the City in taking such actions.
-11
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 encroachments and uses provided for by this Agreement, Licensee
agrees to W to CiWA at the time this A,',.reement is re4amested an aqe.,lication f 1he ee of in i
sum of Five Hundred Dollars ($500.00).
VA
The term of thig Agreement ghall he for tbirty (10) years, coMMeD.Cing on. the
date this Agreement is executed by the City. However, this Agreement may be
terminated upon Licensee's noncompliance with any of the terms of this Agreement.
City shall notify Licensee in writing of any noncompliance and if not cured within thirty
(30) days, this Agreement shall be deemed terminated, unless such noncompliance is not
susceptible to cure within thirty (30) days, in which case this Agreement shall be deemed
are necessary to remedy the noncompliance within thirty (30) days after written notice
specifying the same, or having so commenced, thereafter fails to proceed diligently and
with continuity to remedy same.
a
It is further understood and agreed between the parties hereto that the Easement to
be used and encroached upon is held by City as trustee for the public; that City exercises
such powers over the Easement 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 Easement 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 Easement to be used
for any other public purpose that does not preclude the use of the Encroachment on the
Property, including but not being limited to underground, surface, or overhead
communication, drainage, sanitary sewerage, transmission of natural gas or electricity, or
negotiate in good faith in order to accommodate the Encroachment and the public
purpose.
a
OMM"M W
M .1
Easement Encroachment Agreement - Commercial Page 3 of 12
Revised 12/2018
While this Agreement is in effect, Licensee agrees to furnish City with a
Certificate of Insurance naming City as certificate holder as proof that it 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
M =il
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 to submit a
similar Certificate of Insurance annually to the City on the anniversary date of the
execution of this Agreement.
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 the cleaning and
restoration of the Easement. All insurance coverage required herein shall include
coverage of all Licensee's contractors and subcontractors.
Easement Encroachment Agreement - Commercial Page 4 of 12
Revised 12/2018
M
Licensee agrees to deposit with the City when this Agreement is executed .2
sufficient sum of money to be used to pay necessary fees to record this Agreement in th*
ceal property records of Tarrant County, Texas. After being recorded, the original shaM
be returned to the City Secretary of the City of Fort Worth.
In
Licensee agrees to compiy 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 uses.
IN
I M Uolffj ro. I MI NJ UMOIS DIWO
0
Licensee covenants and agrees that it shall operate hereunder as ail 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 perfonning 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.
10
Licensee agrees and acknowledges that this Agreement is solely for the purpose
of permittin Licensee to construct'. maintain-, and locate the Encroachment over or within
the Easement and is not a conveyance of any right, title, or interest in or to the Easement,
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.
10
M'MMO
I I SOMd U--0 I I OEM= I NO I VIIN IN
Easement Encroachment Agreement - Commercial Page 5 of 12
Revised 12/2018
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]
Easement Encroachment Agreement - Commercial Page 6 of 12
Revised 12/2018
Cam- Licensee:
City of Fort Worth BREWER & HALE, LLC
a Texas limited liability company
By: BH Operations, LLC
a Texas limited liability company
its Manager
By: By:
Randle Harwood, Director Name: William Bailey rewer
Planning & De74Z
opment
Date:/) d
ATTEST:
"
S City Secretary
t. 3:
Title: Manager
Date: 4:::P'�%
As To Form and Legality
Matthew Murray
Assistant City Attorney
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
// (I -) 1 a4djeporting requirements.
Janie S. Morales
Development Manager
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Easement Encroachment Agreement - Commercial Page 7 of 12
Revised 12/2018
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 20 day of
I Wn, X -?.O� I&M
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
Easement Encroachment Agreement - Commercial
�urlip
LAURIE PEQUENO LEWIS
�iNotary Public, State of Texas
f Comm. Expires 12-10-2023
0nt�``� Notary ID 132278952
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ICIALRED" i rY SECRET RN
. (�I�TFi, '9"X
Page 8 of 12
Revised 1/2020
k.
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
%c.VL o- S , on this day personally appeared William Bailey Brewer, Manager of BH
Operations, LLC, a Texas limited liability company, manager of Brewer & Hale, LLC, a
Texas limited liability company 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 Brewer & Hale,
LLC, a Texas limited liability company, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this / �� day of
20 Z c� .
Phu LEK
Notary Public in and for the Na�lt py g� d Tadas
t
State of 1l�,! J
i
Easement Encroachment Agreement - Commercial
AL RECOW
CIFTt, SECRETARY
n'� WORTH 10,
Revised 12/2018
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EXHIBIT B, REVISED
CERTIFICATE OF INSURANCE
Encroachment Assignment Agreement Page 9 of 9
Rev 12/2022