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HomeMy WebLinkAboutContract 45656 (2)CITY SECRETARY / '`� CONTRACTNO., '1 JI,Q1Ly- EASEMENT ENCROACHMENT LICENSE AGREEMENT 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 Manager, its duly designated Assistant City Manager or Planning and Development Director, and CLEARFORK MF1, LP, a Texas limited partnership ("Licensee"), owner of the real property located at 5500 Clearfork Main, Fort Worth, TX 76109 (the "Property"). 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; and WHEREAS, City has a variable width public pedestrian easement (the "Easement", whether one or more) in the Property described or depicted in Exhibit "A" attached to this Agreement and incorporated herein for all purposes; and WHEREAS, Licensee desires to construct/place and maintain certain improvements which will encroach onto the Easement; and WHEREAS, City will allow the encroachment under the terms and conditions set forth in this Agreement to accommodate the needs of Licensee. NOW, THEREFORE, the City and Licensee agree as follows: AGREEMENT 1. City, in consideration of the payment by Licensee of the fee set out below and the covenants and agreements hereinafter contained, to be kept and performed by Licensee, hereby grants permission to Licensee to encroach upon and occupy a portion of the Easement for the purpose of constructing, maintaining, modifying and replacing various facilities such as benches, trash cans, door swings, architectural columns, bollards, light poles and other similar improvements (the "Encroachment", whether one or more) as described in and at the location shown on Exhibit "A" but only to the extent shown thereon. Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining the Encroachment within and above the Easement. Licensee shall not expand or otherwise cause the Encroachment to further infringe in or o Easement beyond what is specifically described in the Exhibit(s) attached here 2014 Easement Encroachment Agreement -Commercial Clearfork MF1, LP - 5500 Clearfork Main iiirsgMta RECORD ' /0\4 to age_ 1- Rev. 04/30/2014 2. All construction, maintenance and operation in connection with such Encroachment, use and occupancy shall be performed in strict compliance with this Agreement and the City's Charter, Ordinances and Codes and in accordance with the directions of the Director of Transportation and Public Works or the Director of the City's Water Department, or his or her duly authorized representative. Licensee shall submit all plans and specifications to the applicable Director or his or her duly authorized representative prior to the construction of the Encroachment. Licensee shall not commence construction of the Encroachment until receiving written approval by the Director, but such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon prior written notice to Licensee, except in the case of an emergency, Licensee agrees that 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. City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Encroachment installed by Licensee, but City will make reasonable efforts to minimize such damage In the event that any installation, reinstallation relocation or repair of any existing or future utility or improvements owned by, 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 uses provided for in this Agreement, Licensee shall pay to City an additional amount equal to such additional cost as reasonably determined by either the Director of Transportation and Public Works or the Director of the Water Department, or said Director's duly authorized representative. 4. Licensee agrees to pay to City at the time this Agreement is requested an application fee of $275.00 in order to defray all costs of inspection and supervision which City has incurred or will incur as a result of the construction, maintenance, inspection or management of the Encroachment and uses provided for by this Agreement. 1$pen d annually amount of $.56 per square/linear foot of the encroachment area. It is specifically agreed between City and Licensee that no annual fee shall be charged under this Agreement because Licensee or its affiliates dedicated the Easement to the City free of charge. 2014 Easement Encroachment Agreement -Commercial Clearfork MF1, LP - 5500 Clearfork Main Page 2 of 9 Rev. 04/30/2014 5. The term of this Agreement shall be for 30 years, commencing on the date this Agreement is executed by City. However, this Agreement shall terminate upon Licensee's non-compliance with any of the terms of this Agreement after notice and opportunity to cure as described herein. City shall notify Licensee in writing of the non- compliance and if not cured within 30 days, this Agreement shall be deemed tenuinated, unless such non-compliance is not susceptible to cure within 30 days, in which case this Agreement shall be deemed terminated in the event that Licensee fails to commence and take such steps as are necessary to remedy the non-compliance within 30 days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with continuity to remedy same. 6. 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 City's governing body at any time during the team hereof determines 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 sewage, transmission of natural gas or electricity or any other public purpose, whether presently contemplated or not, the parties agree to negotiate in good faith in order to accommodate the Encroachment and the public purpose. 7. 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, ARISING OUT OF OR IN CONNECTION WITH, 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 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 2014 Easement Encroachment Agreement -Commercial Clearfork MF1, LP - 5500 Clearfork Main Page 3 of 9 Rev. 04/30/2014 ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT OF OR IN CONNECTION WITH THE ENCROACHMENT AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES. 8. 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 $1,000,000 Commercial General Liability 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 30 days prior written notice to the Building Official of the City of Fort Worth. A copy of such Certificate of Insurance is attached as Exhibit "B". Licensee agrees to submit a Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement Licensee agrees binds and obligates itself, its successors and assigns to maintain and keep in force such public liability insurance at all times during the tend 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 Licensees' contractors and subcontractors. 9. Licensee agrees to deposit with 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 Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth. 10. Licensee agrees to comply fully with all applicable federal, state and local laws, statutes, ordinances, codes or regulations in connection with the construction, operation and maintenance of the Encroachment and uses. 2014 Easement Encroachment Agreement -Commercial Clearfork MF1, LP - 5500 Clearfork Main Page 4 of 9 Rev. 04/30/2014 11. 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. 12. 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 perfouning 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. 13. 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 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 pe missions before occupying such property. 14. City shall be entitled to recover interest and reasonable attorney's fees in any action brought by the City for the enforcement of the obligations of the Licensee. 15. The parties agree that the duties and obligation contained in Sections 3 and 4 shall survive the termination of this Agreement. 16. 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 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. 2014 Easement Encroachment Agreement -Commercial Clearfork MF1, LP - 5500 Clearfork Main Page 5 of 9 Rev. 04/30/2014 17. 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. 18. This Agreement shall be binding upon the parties hereto, their successors and assigns. [SIGNATURES APPEAR ON FOLLOWING PAGE] 2014 Easement Encroachment Agreement -Commercial Clearfork MF1, LP - 5500 Clearfork Main Page 6 of 9 Rev. 04/30/2014 044;b6tdNv Y Y/j/I (6X1 Randle Harwood, Director Name: Paxton Motheral Planning and Development Department Title: Manager Date: Date: Attest: STATE OF TEXAS § COUNTY OF TARRANT § kdd4 kantialeci, Director of the Planning and De - lopment Depart 1 Worth, on behalf the City of ForLWorth 1 THIS AGREEMENT may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one instrument. City: Licensee: CITY OF FORT WORTH CLEARFORK MF1, LP, a Texas limited partnership By: By: Clearfork MF1 GP, LLC, a Texas limited liability company Its General Partner By: CASSANDRA F, FOREMAN Notary Public, State of Texas My Commission Expires April 26, 2017 roved As To Form and Legality • tant City Attorney ) / This instrumt was acknowledged before me on� , 201�qy ent of the City of Fort otary Public, State of Texas OFFICIAL RECORD CITY SECRETARY FT. WOR7G°,, i 2t 2014 Easement Encroachment Agreement -Commercial Clearfork MF1, LP - 5500 Clearfork Main Page 7 of 9 Rev. 04/30/2014 STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on1'Y)1UI r ,) , 2014 gby Paxton Motheral, as Manager of Clearfork MF1 GP, LLC, a Texas limited liability company, as general partner of Clearfork MF 1, LP, a Texas limited partnership, on behalf of said limited partnership. LORI DURCHOLZ Notary Public, State of Texas My Commission Expires June 30, 2017 in A Cloc time/tic-4i Notary Public, State of Texas Or' 2014 Easement Encroachment Agreement -Commercial Clearfork MF 1, LP - 5500 Clearfork Main Page 8 of 9 Rev. 04/30/2014 LEGAL DESCRIPTION OF THE PROPERTY Lot 1, Block NW-2, EDWARDS RANCH CLEARFORK ADDITION an addition to the City of Fort Worth, Tarrant County Texas as recorded in County Clerk's Document No. D214011175 of the Real Property Records, Tarrant County, Texas 2014 Easement Encroachment Agreement -Commercial Clearfork MF1, LP - 5500 Clearfork Main Page 9 of 9 Rev. 04/3 0/2014 EXHIBIT "A" DEPICTION OF THE ENCROACHMENT [See following page(s)] 2014 Easement Encroachment Agreement -Commercial Clearfork MF1, LP - 5500 Clearfork Main Exhibit A Rev. 04/30/2014 r — A, PERT/ LINA MARATHON AVE MARATHON AVE ORNTY LINE — R) pMRHAY TT. GRCS& ALK PAVtb PROALRx LINZ a a PLAN lirAlfa NNW' PLAN IA studcOutside TRAILHEAD BEND WAY 4.••••••••! 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I 1 1 I I i 1 u NOKONI LADE I 0 'CONDUIT eCN:N PLAN Pun studioOutside TRAILHEAD BEND WAY NIVW NilOjiIY31Z NIVW MIOx V31Z GAGE AVE t Z TRAILHEAD BEND WAY EXHIBIT "B" INSURANCE CERTIFICATE [See following page(s)] 2014 Easement Encroachment Agreement -Commercial Clearfork MF1, LP - 5500 Clearfork Main Exhibit B Rev, 04/30/2014