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HomeMy WebLinkAboutContract 45949 EASEMENT ENCROACHMENT LICENSE AGREEMENT Coinnzercial 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 or its duly designated Assistant City Manager ("City") or Planning and Development Director, and Windridge A2A Developments, L.L.C., hereinafter referred to as "Licensee", owner of the property located at 11344 Live Oak Creek Boulevard, Fort Worth, Texas. RECITALS WHEREAS, Licensee is the owner of certain real property described as (The Hills of Windridge, Phase 1), an addition to the City of Fort Worth, Tarrant County, Texas as recorded in Instrument No. D213298533 of the Real Property records of Tarrant County Texas; and WHEREAS, the City has a 10' wide utility easement (the "Easement") in the property as shown on the map attached to this Agreement as Exhibit "A" and incorporated herein; and WHEREAS, Licensee desires to construct/place and maintain a retaining wall which will be used for grading (the "Encroachment") and which will encroach onto the City's Easement as shown on the attached survey and only to the extent shown thereon; 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 the Licensee, hereby grants permission to the Licensee to encroach upon and occupy a portion of the City's Easement as described in and at the location shown Exhibit A for the purpose of constructing and maintaining a retaining wall (the `Encroachment"). Upon completion of the Encroachment, Licensee agrees to be responsible for Easement Encroachment Agreer Page 1 of 9 OFFICIAL RECORD CITY SECRETARY RECEIVED SEP 22 2014 F`T'.WOW 14 q TX maintaining any and all structures and buildings within and above the Easement. Licensee shall not expand or otherwise cause the Encroachment to further infringe in or on the City's Easement beyond what is specifically described in the exhibit(s) attached hereto. 2. All construction, maintenance and operation in connection with such Encroachment, use and occupancy shall comply and be performed in strict compliance with the Charter, Ordinance 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 of City, or his duly authorized representative. Prior to the construction of the Encroachment, Licensee shall submit all plans and specifications to the applicable Director or his duly authorized representative. Licensee shall not commence construction of the Encroachment until such approval shall be indicated in writing by the Director. However, such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. 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 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 use, Licensee shall pay to City an additional amount equal to such additional cost as reasonably determined by the Director of Transportation and Public Easement Encroachment Agreement—Live Oak Creek Page 2 of 9 Works or the Director of the Water Department of the City, or his duly authorized representative. 4. 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 encroachments and uses 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 Three Hundred and Twenty Five Dollars ($325.00). Upon execution of this Agreement and annually thereafter, Licensee agrees to pay a fee in the amount of$.56 per square/linear foot of the encroachment area. 5. The term of this Agreement shall be for thirty(30)years, commencing on the date this Agreement is executed by the City of Fort Worth. Provided however, this Agreement shall terminate upon the non-compliance of any of the terms of this Agreement by the Licensee. City shall notify Licensee of the non-compliance and if not cured within thirty days this Agreement shall be deemed terminated. 6. It is further understood and agreed upon between the parties hereto that the easements to be used and encroached upon as described herein, are 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 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 right of way to be used for any other public purpose, that does not preclude the use of the Encroachment on the Property for a office building or activities related thereto, including but not being limited to underground, surface of overhead communication, drainage, sanitary sewerage, transmission of natural or electricity, or any other public purpose, whether presently contemplated or not, that the parties agree to Easement Encroachment Agreement—Live Oak Creek Page 3 of 9 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 SAID ENCROACHMENTS 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 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. 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 the following: $1,000,000 Commercial General Liability Easement Encroachment Agreement—Live Oak Creek Page 4 of 9 with the understanding of and agreement by Licensee that such insurance amounts shall be revised upward at City's option and that Licensee shall so revise such amounts immediately following notice to Grantee of such requirement. Such insurance policy shall provide that it cannot be canceled or amended without at least ten (10) days prior written notice to the Building Official of the City of Fort Worth. A copy of such Certificate of Insurance is attached as attached as Exhibit `B". Licensee agrees to submit a similar 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 term of this Agreement and until the removal of all encroachments and the cleaning and restoration of the city streets. All insurance coverage required herein shall include coverage of all Licensees' contractors. 9. 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 Encroachment on Easement Agreement in its entirety in the deed records of Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth, Texas. 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 said Encroachment and uses. 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. Easement Encroachment Agreement—Live Oak Creek Page 5 of 9 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 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. 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 described 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 permission before occupying such property. 14. 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 attorney's fees. 15. The parties agree that the duties and obligation contained paragraphs 3 and 4 shall survive the termination of this Agreement. Easement Encroachment Agreement—Live Oak Creek Page 6 of 9 16. Licensee covenants and agrees that it will not assign all or any of its rights, privileges or duties under this contract without the written approval of City, and any attempted assignment without such written approval should be void. 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. EXECUTED this day of , 2(� City Licensee: City of Fort Worth Windridge A2A Developments, L.L.C. By: By: 4ndle H Jeff Peterson Director Manager and Vice President Planning and Development ATTEST: Approved As To Form and Legality Easement Encroachment Agreement—Live Oak Creek Page 7 of 9 0°� °; O O ooD oo �D00000DODODOD - City Seer Assistant City Attorney 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 ��' /KMO( , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she 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 20 -1 MARYBEL PINA Notary Public,state or texas Nota P uac in and for the State of Texas My Commission Expires •.,,,�;,,,.• septomber 10, 2018 OFFICIAL RECORD 9Easement Encroachment Agreement—Live Oak Creek CI'f Y ofRETARI( Fir-WORTH,TX 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 Jeff Peterson, Manager and Vice President, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of Windridge A2A Developments, L.L.C., and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 15 day Y of 201 •� P Notary Public in and for the State of Texas P�9 c; JOY LP *' MY COMMISSION EXPIRES rr•"�1 T November 4,2W Easement Encroachment Agreement—Live Oak Creek Page 9 of 9 I 29 28 I 7 .5' ' 50.07' RETAINING WALL I v1 I RETAINING WALL ENCROACHMENT AREA 3 I I 5 O 11.51 � 7.5 L.F. OF PROPOSED RETAINING WALL PN WITHIN 10' UTILITY W�NpF��29533 EASEMENT N CD P 0 z 30 r o = 11344 31 t� m LIVE OAK CREEK o BOULEVARD b 2.5' WALL 19 MAINTENANCE I 10' UTILITY ESM'T 20 DING LINE 10' U.E. R.O.W• LIVE OAK CREEK BLVD. EXHIBIT 'A' EASEMENT ENCROACHMENT LICENSE AGREEMENT 11344 LIVE OAK CREEK BOULEVARD THE HILLS OF WINDRIDGE PRINTED 8/22/2014 STB FILET WIER-PAVING.STB FILEt LIVE OAK CREEK.DWG 0 20 40 LAST SAVED i 6/13/2014 10,51 AM SAVED BY i LARRYM W.A. NO. 12132 M",NAWIER & ASSOCIATES, INC. ® DATE(MM/DD/YYYY) ACOR" CERTIFICATE OF LIABILITY INSURANCE 8/13/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). CONTACT PRODUCER NAME: Hotchkiss Insurance Agency, LLC PHON o t 2- 2- A/c No: - - 4120 International Parkway E-MAIL Carrollton TX 75007 ADDRESS. I I . INSURERS AFFORDING COVERAGE NAIC# INSURER A:ASSOciation Insurance Company 11240 INSURED A2ACA-1 INSURER B: A2A Capital Management USA, LLC INSURERC: Windridge A2A Development, LLC INSURER D: Serene Development, LLC dba Serene Homes 548 Silicon Drive,#100 INSURER E: Southlake TX 76092 INSURER F: COVERAGES CERTIFICATE NUMBER:2140172287 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR INSR WVD POLICY NUMBER MM/DDIYYYY /Y MM/DDYYY • GENERAL LIABILITY PKGO15121100 /29/2014 /29/2015 EACH OCCURRENCE $1,000,000 X DAMAGE TO RENTED j COMMERCIAL GENERAL LIABILITY PREMISES Ea occurrence $300,000 CLAIMS-MADE IT]OCCUR MED EXP(Any one person) $10,000 PERSONAL&ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $2,000,000 X-1 POLICY PRO LOG $ JEC• AUTOMOBILE LIABILITY PKGO15121100 /29/2014 /29/2015 Ea accident) E LIMIT $1,000,000 ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS AUTOS NON-OWNED PROPERTY DAMAGE $ Ix HIREDAUTOS X AUTOS Peraccident $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED RETENTION$ $ WORKERS COMPENSATION WC STATU- OTH- AND EMPLOYERS'LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE❑ NIA E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L.DISEASE-EA EMPLOYE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ i it j DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101,Additional Remarks Schedule,if more space is required) Additional Named Insured: Fossil Creek A2A Developments, LLC; Sendera Ranch A2A Developments, LLC I CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Fort Worth ACCORDANCE WITH THE POLICY PROVISIONS. 1000 Throckmorton St. Fort Worth TX 76102 AUTHORIZED REPRESENTATIVE ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25(2010105) The ACORD name and logo are registered marks of ACORD