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HomeMy WebLinkAboutContract 36669 CITY SECRETARYqj CONTRACT NO. EASEMENT ENCROACHMENT AGREEMENT STATE OF TEXAS § COUNTY OF TARRANT § THIS AGREEMENT is made and entered into by and between the City of Fort Worth, a municipal corporation of Tarrant County, Texas, acting herein by and through its duly authorized City Manager or duly designated Assistant City Manager, hereinafter referred to as the "City", and WDS Green Oaks L.P., a Texas limited partnership, acting herein by and through its duly authorized general partner, WDS Green Oaks GP, LLC, hereinafter referred to as "Grantee", owner of the property located at 6901 West Freeway in the Green Oaks Addition of the City of Fort Worth, bounded by the following streets: Calmont Avenue and Interstate Highway 30 Eastbound Access Road ("Property'), such Property being replatted as Lot 1, Block-1 of the Plaza at Green Oaks in the City of Fort Worth. WITNESSETH: 1. For and in consideration of the payment by Grantee of the fee set out below and the true and faithful performance of the mutual covenants herein contained, City hereby grants to Grantee permission to construct/install and allow to remain improvement(s) ("Improvements") that include certain features that encroach upon, use and/or occupy portions of the space under, on and/or above the streets, alleys, sidewalks, other public rights-of-way and/or easements, such Improvements are described as follows: a new office building and parking area to be constructed pursuant to plans and specifications approved by the City that will encroaching over an existing storm drain easement. Said office building and parking area will replace the Green Oaks Hotel which currently encroaches upon 02-27-08 A09 :34 IN u�i�' the aforementioned storm drain easement. Upon completion of the Improvements, Grantee agrees to be responsible for maintaining any and all structures and buildings within and above the storm drain easement. The location and description of said Improvements are more particularly described in Exhibit "A", attached hereto and incorporated herein and made a part hereof for all purposes. 2. All construction, maintenance and operation in connection with such Improvements shall be performed in strict compliance with this Agreement and the Charter, Ordinances and Codes of the City and in accordance with the directions of the Director of Transportation and Public Works of City, or his duly authorized representative. All plans and specifications thereof shall be subject to the prior written approval of the Director of Transportation and Public Works, or his duly authorized representative, but such approval shall not relieve Grantee of responsibility and liability for concept, design and computation in preparation of such plans and specifications. 3. Upon completion of construction and installation of said Improvements and thereafter, there shall be no encroachments in, under, on or above the surface area of the streets, alleys, sidewalks, easements and other public rights- of-way involved, except as described herein and as shown on Exhibit "A". 4. Grantee, at no expense to the City, shall make proper provisions for the relocation and installation of any existing or future utilities, located completely within the encroached open easement and consistent with the use for which such easement was dedicated that are affected by such Improvements use and occupancy, including the securing of approval and consent from the utility companies and the appropriate agencies of the State and its political subdivisions. In the event that any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned by, constructed by or on 2 behalf of the public or at public expense is made more costly by virtue of the construction, maintenance or existence of such Improvements and use, Grantee shall pay to City an additional amount equal to such additional cost as reasonably determined by the Director of Transportation and Public Works of the City, or his duly authorized representative. 5. City may enter and utilize the easement areas at any time for the purpose of installing or maintaining improvements necessary for the health, safety and welfare of the public or for any other public purpose, however, in non-emergency situations City will provide Grantee with written notification of the work needed and the construction time necessary to complete the work prior to commencement. In this regard, Grantee understands and agrees that City shall bear no responsibility or liability for damage or disruption of improvements installed by Grantee or its successors, but City will make reasonable efforts to minimize such damage. 6. 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 Improvements and uses provided for by this Agreement, Grantee agrees to pay to City at the time this Agreement is executed a fee in the sum of Five Hundred Thirty Five Dollars ($ 535 ). 7. The term of this Agreement shall be for thirty years, commencing on the date this Agreement is executed by the City of Fort Worth and automatically renewed for an additional ten (10) year term if all provisions of the preceding term have been fulfilled, payment of fee associated with a consent to encroach agreement that is in effect at that time and evidence that the City's insurance requirements are being met. 8. 3 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 Improvements on the Property for a office building and parking area and/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 negotiate in good faith in order to accommodate the Improvements and the public purpose. 9. Grantee understands and agrees that the granting of any Improvements hereunder is not meant to convey to Grantee any right to use or occupy property in which a third party may have an interest, and Grantee agrees that it will obtain all necessary permission before occupying such property. 10. Grantee 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 Improvements and uses. 11. Grantee 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. 4 if �l�l� 12. Grantee 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 Grantee 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 Grantee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Grantee. 13. GRANTEE 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 IMPROVEMENTS AND 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 GRANTEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. GRANTEE 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 GRANTEE, ITS OFFICERS, AGENTS, SERVANTS, 5 EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES. 14. While this Agreement is in effect, Grantee 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: Property damage, per occurrence $100,000 Bodily injury, per person $250,000 Bodily injury or death, per occurrence $500,000 with the understanding of and agreement by Grantee that such insurance amounts shall be revised upward at City's option and that Grantee 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 Exhibit "B." Grantee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement. Grantee, its successors and assigns, agrees, binds and obligates itself, 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 Improvements and the cleaning and restoration of the City streets. All insurance coverage required herein shall include coverage of all Grantee's contractors. 15. Grantee 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 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 6 16. In any action brought by the City for the enforcement of the obligations of Grantee, City shall be entitled to recover interest and reasonable attorneys' fees. 17. Except in connection with the sale, lease or mortgaging of the Property, Grantee covenants and agrees that it will not assign all or any of its rights, privileges or duties under this contract without the prior written approval of the City Manager or designee. Any attempted assignment without prior written approval will be void. 18. THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 19. This Agreement shall be binding upon the parties hereto, their successors and assigns. �Ue r'.J.:�JC9 UI�Gtla EXECUTED this a day ofILJ�� , 2008. City Grantee City of Fort Worth WDS Green Oaks, L.P., a Texas limited partnership By: WDS Green Oaks GP, LLC, a Texas limited liability company, its general partner By: �� By: Fernando Costa odd Ashbrook, Manager Acting Asst. City Manager ATTEST: Approved As To Form And Legality M&J—aLn L�- *I A���Zam City Secre ary Assistant City Attorney Contract A thorizatioa Date IN 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 f«-,--j- 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 � j"q:- ROSELLA BARNES •" MY COMMISSION EXPIRES Me031,2009 Notary Public in and for the State of Texas 9 , STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and forrr the State of Texas, on this day personally appeared _ c� Ic _ A d-L-OtIL, 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 �C� of WDS Green Oaks GP , LLC, a Texas limited liability company, general partner of WDS Green Oaks, L.P., a Texas limited partnership, as the act and deed of said limited liability company and said limited partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this_��day of 2001 VALERIE K.LINDLOFF Notary Public (Votary Public in and for the ' STATE OF TEXAS My Comm.Exp.Oa.28,2011 State of Texas Tom•• _ 10 Exhibit "A" Description of the Improvements [follows] V 11 'Cliff FIT, Interstat 30 Eastbound Access Road (van 64 W�dlh ROW-(;Doane Pev— �0 IJp�BOT-oUNU EXISTIN 10'x10' • ��--- / BOX LVERT PROPOSED JUCTION STRUCTURE r` / PROPOSED OFFICE BUILDING PROPOSED OFFICE BUILDING PROPOSED 75' / DRAINAGE EASEMENT � G 0 0 o � I / 0 f � / 0 0 / X o 1 W r PROPOSED JUCTION BOX � I Ca►mont Avenue (SO-R.O.W-ASPHALT PAVEMENT{ TAM _ ELEV=7835' FY EXISTING 3-36" RCP (-m •�.`. >+vwloxnatE urars of t`—J �=Eb FLOODXITJIR'b ow REF. Ft.000PtNN SrUW No. FP-O7-000-FS v 077^) WILCOX GREEN OAKS PHASE 1 0 100 200 ENCROACHMENT AGREEMENT EXHIBIT 11'-1100' Exhibit "B" Certificates of Insurance [follows] 12 CAWLEYW-01 HAN ACORD,, CERTIFICATE OF LIABILITY INSURANCE FDAT21712008 PRODUCER (847)307-6100 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION rHE PLEXUS GROUPE INC. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 21805 Field Parkway HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR y ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Suite 300 Deer Park,IL 60010 INSURERS AFFORDING COVERAGE NAIC# INSURED WDS Green Oaks LP INSURER A:Travelers Indemnity Company of America, 14785 Preston Road Suite 850 INSURER B:The Travelers Indemnity Company Dallas,TX 75254 INSURER C:American Home Assurance Company INSURER D. INSURER E: COVERAGES 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.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. - R DD POLICY EFFECTIVE I POLICY EXPIRATION LTR POLICY NUMBER D M IDD ATE MMID IYY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,00 DAM A X X COMMERCIAL GENERAL LIABILITY Y630-848813361-TIL-07 7/1/2007 7/1/2008 PREMISES Ea occurence $ 100,000 CLAIMS MADE - I OCCUR MED EXP(Any one person) $ 10,000 PERSONAL&ADV INJURY ! $ 1,000,00 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER. I PRODUCTS-COMP/OP AGG I$ 2+000,000 POLICY JEC X LOC � PRO- AUTOMOBILE LIABILITY I, X COMBINED SINGLE LIMIT $ 1,000,000 B ANY AUTO BA-848813361-07-CAG 7/1/2007 7/1/2008 (Ea accident) X ,ALL OWNED AUTOS [" BODILY INJURY $ SCHEDULED AUTOS (Per person) X HIRED AUTOS BODILY INJURY F X NON-OWNED AUTOS (Per accident) $ 1 i PROPERTY DAMAGE i$ (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT S ANY AUTO EA ACC $ `-1 I OTHER THAN AUTO ONLY: AGG $ EXCESSIUMBRELLA LIABILITY ±EACH OCCURRENCE $ 25,000,000 C OCCUR In CLAIMS MADE BE7235529 7/1/2007 7/1/2008 AGGREGATE $ 25,000,000 $ DEDUCTIBLE hI $ X RETENTION $ 10,000i $ WCSTATU- OTH- WORKERS COMPENSATION AND TORY LIMITS ER EMPLOYERS'LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $ OFFICERIMEMBER EXCLUDED? .i E.L.DISEASE-EA EMPLOYEE $ If yes,describe under SPECIAL PROVISIONS below E.L.DISEASE-POLICY LIMIT ; $ OTHER i I I DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS 11.22 acres at 6901 West Freeway,Ft.Worth,TX 76116. Ten day notice of cancellation or non-renewal required. INCLUDING THE CONSTRUCTION OF THE BUILDING OVER THE EASEMENT AS DESCRIBED IN THE ENCROACHMENT AGREEMENT. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION City of Fort worth 1000 Throckmorton DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL 60 DAYS WRITTEN Fort Worth,TX 761 02- NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ACORD 25(2001108) ©ACORD CORPORATION 1988 Page 1 of 1 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 2/5/2008 DATE: Tuesday, February 05, 2008 LOG NAME: 20WDSEASEMENT REFERENCE NO.: **G-16034 SUBJECT: Authorize Execution of an Encroachment Agreement with WDS Green Oaks, L.P., a Texas Limited Partnership, for use of the Drainage Easement for the Construction of Wilcox Plaza at Green Oaks RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a modified encroachment agreement with WDS Green Oaks, L.P., a Texas Limited Partnership, for the construction of a three story office building encroaching over a drainage easement. DISCUSSION: WDS Green Oaks, L.P., a Texas Limited Partnership, has requested use of the drainage easement for the construction of a three-story office building at 6901 West Freeway. The building will be built on top of an existing and proposed storm sewer line. There is currently a building built over the storm sewer line that will be demolished and replaced by the new building. Based on the restrictions of the site the placement of the building over the storm sewer line has been approved by Transportation and Public Works staff. The fee for the privilege granted by this agreement will be $535. The modified term of the agreement will be 30 years plus a 10 year automatic extension. City Council authority is required for requests exceeding 30 years. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that the Transportation and Public Works Department is responsible for the collection and deposit of the fee due the City. TO Fund/Account/Centers FROM Fund/Account/Centers PE69 481306 0209000 $535.00 Submitted for City Manager's Office by. Marc A. Ott (8476) Originating Department Head: Robert Goode (7804) Additional Information Contact: Carl Craigo (2252) http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/27/2008