HomeMy WebLinkAboutContract 63026Date Received: 3/27/2025 Record Number: PN25-00045
Time Received: 12:26 p.m. City Secretary No.: 63026
ENCROACHMENT AGREEMENT
FOR USE OF PUBLIC RIGHT-OF-WAY
TIER II
THIS ENCROACHMENT AGREEMENT FOR USE OF PUBLIC RIGHT-
OF-WAY ("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 GPIF CD II LLC, a Delaware limited
liability company ("Licensee"), acting by and through its duly authorized representative.
RECITALS
WHEREAS, Licensee is the owner of the real property located at 3336 Boland
Street, Fort Worth, Texas 76107 ("Property"), being more particularly described as Lot
2R-1, Block 5, Van Zandt's Hillside Addition, an addition to the City of Fort Worth,
Tarrant County, Texas, as recorded in Deed Records, by Instrument Number
D224050480;
WHEREAS, the City owns a right of way (the "Public Property") adjacent to
the Property, dedicated by plat, depicted on the final plat of the property (FS-23-204),
which plat is recorded in the plat records of Tarrant County as Instrument D224050480;
WHEREAS, Licensee desires to construct and place a soil nails retention system
depicted in Exhibit "A," (the "Encroachment"), which will encroach in, on, above, or
below the Public Property;
WHEREAS, Licensee will relinquish ownership of the portion of the
Encroachment that encroaches in, on, above or below the Public Property upon the
completion of the construction of the underground structure depicted in Exhibit "A" (the
"Underground Structure"); 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:
Tier II ROW Encroachment Agreement Page 1 of 15
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 locations shown
on Exhibit "A," but only to the extent shown thereon, for the purpose of constructing
and installing a soil nails retention system ("System"). 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." Licensee shall obtain a street use permit
from the Right of Way Management Division of the City's Transportation & Public
Works Department prior to installation of the System within the Public Property.
Licensee plans to relinquish all ownership interest in the Encroachment within the Public
Property. The City will allow the Licensee to do so when the Licensee provides the City
with a certificate of occupancy for the building located within Licensee's Property that is
being constructed. The date of issuance of the certificate of occupancy shall become the
date of Licensee's relinquishment of ownership (the "Date of Abandonment").
Licensee shall have no obligation to remove any portion of the System or Encroachment
following the Date of Abandonment.
2.
All construction, installation, maintenance, and operation of the System, including
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. Licensee shall not install any permanently
functional anchors in the Public Property. Licensee shall only install anchors in the
Public Property that are of the drilled and grouted type (tied -back anchors or soil and
rock nails), or mechanical anchors of the helical screw type. Only anchors are allowed in
the right of way; No other components of the System are allowed; All anchors must be
located at least 10-feet below the elevation of the adjacent street curb. Anchors shall not
extend beyond the center of the street right of way. Anchors must be no closer than 5 feet
to the outer surface of the nearest existing or planned buried utility. Prior to the
construction or installation of the Encroachment, Licensee shall submit all engineering
drawings of the System, sealed by a Texas -licensed professional engineer, to the Director
of the Development Services Department or the Director's duly authorized
representative. The engineering drawings must contain the following: (a) plan views of
the System with dimensions referenced to the right of way line and showing the existing
street curb and all existing utilities in the adjacent right of way, including wastewater
mains and services, water mains and services, water meter vaults, wastewater cleanouts,
and hydrants; and (b) Technical specifications for monitoring and reporting to the City
the elevations and horizontal movements of features in the right of way. Licensee shall
provide the City with two elevation surveys of the right-of-way: one prior to installation
of the System, and one following installation of the System. During installation of the
Tier II ROW Encroachment Agreement Page 2 of 15
System, Licensee shall report to the City the elevations and horizontal movements of all
features in the right-of-way one time per week from the execution of this Agreement until
Licensee relinquishes ownership in the Encroachment. All surveying must be performed
by a Texas Registered Professional Land Surveyor (with the exception of the weekly
reports set forth in the preceding sentence and the next to last sentence of this paragraph,
which will be performed and provided by the field engineer under the direction of a
Registered Professional Land Surveyor) and all engineering drawings must be prepared
by a licensed engineer. Permanent monuments of a type that will be vandal -proof and not
disturbed by pedestrian, vehicular, or construction traffic must be set at each elevation
point. These monuments must be tied to bench marks that are a sufficient distance away
from the excavation to be unaffected by the excavation. Loss or disruption of the
monuments or failure to survey and report data may result in revocation of this
Agreement if Licensee fails, within five (5) business days of discovery of disruption, to
commence repair or replacement of the monuments. The following features that are
closer to the System than twice the completed excavation depth must be monitored: (1)
street curb on 50-foot intervals along the curb or at alternating soldier piles (whichever is
less); (2) street centerline on 50-foot intervals or at alternating soldier piles (whichever is
less); (3) wastewater pipe flowlines at manholes; (4) water line valve stems at valve
boxes; and (5) other utility features, as appropriate. Survey information shall be sent
weekly to the City's Project Manager. Licensee shall not commence construction or
installation of the portion of the Encroachment in, on, above or below the Public Property
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. Within 30 days after the completion of installation of the
System, Licensee shall submit to the City two digital copies of pre -construction and post
construction closed-circuit television records of wastewater and storm drain lines
designated in this Agreement under Exhibit `B."
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
Tier II ROW Encroachment Agreement Page 3 of 15
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. After
Licensee relinquishes ownership in the Encroachment, City shall have the right to remove
the Encroachment from the Public Property at any time without notice to Licensee.
Provided, however, City shall not intentionally damage Licensee's Property in connection
with any such destruction or removal of same.
5.
Prior to the Date of Abandonment, Licensee shall, at the option of and at no
expense to the City, restore the Public Property to a condition substantially equal to or
better than it was prior to such installation as acceptable to 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 (provided that
such restoration does not include removal of the System itself). Any such restoration shall
be in accordance with then -existing City regulations and policies. It is understood and
agreed to by Licensee that if Licensee fails to 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. City will not exercise
the rights in this sentence so long as Licensee is diligently pursing efforts to perform the
restoration, recognizing that there will be time required to investigate the issue and then
identify and contract with consultants and contractors. City shall give Licensee written
notice of thirty (30) days to cure before exercising its rights in this paragraph.
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 One Thousand Twelve Dollars and Fifty Cents
($1012.50). Additionally, Licensee agrees to pay a fee in the amount of $5488.31 upon
execution of this Agreement and annually until the relinquishment in the ownership of
the Encroachment.
7.
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
Tier II ROW Encroachment Agreement Page 4 of 15
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.
8.
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.
9.
Until the relinquishment of the ownership of the Encroachment, 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
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. A copy of such Certificate
of Insurance is attached as Exhibit "C" and incorporated herein for all purposes.
Licensee agrees, binds, and obligates itself and its successors and assigns to maintain and
keep in force such liability insurance at all times during the term of this Agreement and
Tier II ROW Encroachment Agreement Page 5 of 15
until the relinquishment of the ownership of the Encroachment. All insurance coverage
required herein shall include coverage of all Licensee's contractors and subcontractors
that are installing the Encroachment.
10.
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.
11.
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.
12.
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 with regard
to the installation of the Encroachment.
13.
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.
14.
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 6 of 15
15.
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.
16.
This Agreement shall terminate upon the earlier of (a) Date of Abandonment or (b) one
(1) year after the Effective Date. However, the duties and obligations contained in
Section 5 and Section 8, to the extent it applies to initial construction of the Underground
Structure, shall survive until the Date of Abandonment. Upon termination of the
Agreement, Licensee shall file a notice of termination attached hereto as Exhibit "M in
the Real Property Records of Tarrant County, Texas and provide a copy to the City.
IN
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.
18.
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.
19.
This Agreement shall be binding upon the parties hereto and their successors and
assigns.
20.
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 7 of 15
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Tier II ROW Encroachment Agreement Page 8 of 15
EXECUTED to be effective on the date signed by the City's Director of
Development Services Department (the "Effective Date").
City:
CITY OF FORT WORTH
n HArreCG
Y• Dalton Harrell (Mar 27, 2025 08:42 CDT)
D. J. Harrell
Director, Development Services Department
Date:
ATTEST:
A
Mar 27, 2025
Jannette Goodall,
City Secretary
Approved as to Form and Legality
Hye Won Kim
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
and reporting requirements.
kvebecca Dwell
Rebecca Owen (Mar27, 2025 08:36 CDT)
Rebecca Owen
Development Services Manager
Tier II ROW Encroachment Agreement Page 9 of 15
Licensee:
GPIF CD II LLC,
a Delaware limited liability company
B •
Name: Kevin Crum
Title: Sr. Vice President - Development
Date: / a 1Q /a L
STATE OF TEXAS §
COUNTY OF2.I, L a1,- §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
Texas, on this day personally appeared Kevin Crum, Sr. Vice President - Development
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 GPIF CD II LLC, a Delaware Liability
Company, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
Dq&r(,h ., , 2025.
Notary Public in and for the
State of T ea S
LINDA M. WILLIAMS
°`. ¢g: Notary Public, State of Texas
SOA'.. Comm. Expires 07-26.2026
%,�;�tNotary ID 129898333
Tier II ROW Encroachment Agreement Page 10 of 15
9*�i"1.l6vWW"J! tol: ..YI P rail? no AM w9iil�itil
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 LTNDER MY HAND AND SEAL OF OFFICE this 27th day of
March 12025
Notary Public in and for the State of Texas
=�pFtyP�e� WENDY L BEARDSLEE ;
Notary Public
* * STATE OF TEXAS
Notary I.D. 13323719-3
9TF00 My Comm. Exp. July 28, 2025
Tier II ROW Encroachment Agreement Page 1 I of 15
1*141II:10W.1
Depiction and description of the Encroachment
Tier II ROW Encroachment Agreement Page 12 of 15
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EXHIBIT B
Pre -construction and Post Construction Closed -Circuit Television Records of Wastewater
and Storm Drain Lines
Tier II ROW Encroachment Agreement Page 13 of 15
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LEGEND
WATER
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EXHIBIT C
Certificate of Insurance
Tier II ROW Encroachment Agreement Page 14 of 15
EXHIBIT D
Notice of Termination
Tier II ROW Encroachment Agreement Page 15 of 15
Date Received:
Time Received:
Record Number:
City Secretary No.:
TERMINATION OF ENCROACHMENT LICENSE AGREEMENT
This TERMINATION OF ENCROACHMENT LICENSE AGREEMENT is made
and entered into by and between the CITY OF FORT WORTH ("City"), a Texas home rule
municipal corporation of Tarrant County, Texas, acting herein by and through its duly authorized
City Manager, Assistant City Manager, or Development Services Department Director, and
[insert name of entity here] ("Licensee"), a [insert type of entity here], acting herein by and
through its duly authorized representative.
RECITALS
WHEREAS, City and Licensee made and entered into City Secretary Contract No.
[ ] (the "Agreement"), on [ ], to authorize Licensee's encroachment upon the City's
[easement/Public Right -of -Way] for the purpose of [ 1. and
WHEREAS, the parties now wish to terminate the Agreement.
NOW, THEREFORE, City and Licensee, acting herein by and through their duly
authorized representatives, enter into the following agreement:
AGREEMENT
The Agreement is hereby terminated effective on 1, subject to
Section 16 of the Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Page 1 of 6
Updated 2024
EXECUTED to be effective on the date signed by the City's Director of Development
Services Department
City:
CITY OF FORT WORTH
D. J. Harrell
Director, Development Services Department
Date:
ATTEST:
Approved as tdfdo Form and Legality
Jannette Goodall, Hye Won Kim
City Secretary 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
and reporting requirements.
Rebecca Owen
Development Services Manager
Page 2 of 6
Updated 2024
Licensee:
GPIF CD II LLC,
a Delaware limited liability company
Name: Kevin Crum
Title: Sr. Vice President - Development
Date:
STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Kevin Crum, Sr. Vice President - Development 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 GPIF CD II LLC, a Delaware Liability Company, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
72025.
Notary Public in and for the
State of
Page 3 of 6
Updated 2024
: � ry �_�h � �u ;i� � � I DLIJ N KILIJ 1flft�mm1�1►I
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 day of
2024.
Notary Public in and for the State of Texas
Page 4 of 6
Updated 2024