HomeMy WebLinkAboutContract 33098 CITY SECRETARY
CONTRACT No.
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 First States Investors
5000A. LLC, a Delaware limited liability company, hereinafter referred to as
"Grantee", Owner of the property located at Fort Worth East, 5651 East
Lancaster Avenue, Fort Worth, Texas 76112 ("Property").
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/or
allow to remain, Improvement(s) ("Improvement") that encroaches upon, uses
and/or occupies portions of the space under, on and/or above the streets, alleys,
sidewalks and other public rights-of-way, such Improvement(s) are described as
follows: Certain tubing that is located beneath that certain public street
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known as Yeager Street that seCot'- - certain motor bank to the building
at the Property.
The location and description of said Improvement and the encroachment is more
particularly described in Exhibit "A", attached hereto, incorporated herein and
made a part hereof for all purposes.
2.
All construction, maintenance and operation in connection with such
Improvement, use and occupancy shall be performed in strict compliance with
this Agreement and the Charter, Ordinances and Codes of the City and in
accordance with the reasonable 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 relive 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 Improvement and
thereafter, there shall be no encroachments in, under, on or above the surface
area of the streets, alleys, sidewalks and other public rights-of-way involved,
except as described herein and shown on the hereinabove referred to 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 affected by such
encroachment 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 behalf of the public or at public expense is made more
costly by virtue of the construction, maintenance or existence of such
encroachment and use, Grantee shall pay to City an additional amount equal to
such additional cost as determined by the Director of Transportation and Public
Works of the City, or his duly authorized representative.
5.
City may enter and utilize the referenced 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. In this regard, Grantee
understands and agrees that City shall bear no responsibility or liability for
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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 encroachments 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 and no/100 Dollars ($535. 00).
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.
8.
Upon termination of this Agreement, Grantee shall, at the option of City
and at no expense to City, restore the public right-of-way and remove the
Improvement encroaching into the public right-of-way, to a condition acceptable
to the Director of Transportation and Public Works, or his duly authorized
representative, and in accordance with then existing City specifications. It is
understood and agreed to by Grantee that if this Agreement terminates because
the Business ceases to operate and Grantee fails to remove the Improvement,
Owners hereby gives City permission to remove the Improvement and any
supporting structures and assess a lien on the Property for the costs expended
by the City to remove such improvement.
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9.
It is further understood and agreed upon between the parties hereto that
the City streets, alleys, sidewalks and other public rights-of-way, including the
portions of such streets, alleys, sidewalks and other public rights-of-way 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 streets 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
streets for the use and benefit of the public. It is accordingly agreed that it the
governing body of City should at any time during the term hereof determine in its
sole discretion to use or cause or permit the said portions of the streets, alleys,
sidewalks and other rights-of-way 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,
then this Agreement shall be automatically canceled or terminated.
10.
Grantee understands and agrees that the granting of any encroachment
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.
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11.
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 Improvement, encroachment
and uses.
12.
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.
13.
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.
14.
GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS
OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, 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 SAID IMPROVEMENT AND
ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT
CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, LICENSEES 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 ANY AND ALL ACTS OR OMISSIONS OF GRANTEE,
ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS.
15.
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 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 Grantee's contractors.
16.
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
Consent 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.
17.
In any action brought by the City for the enforcement of the obligations of
Grantee, City shall be entitled to recover interest and reasonable attorney's fees.
18.
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.
19.
THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION
CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
20.
This Agreement shall be binding upon the parties hereto, their successors
and assigns.
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EXECUTED this I 1 day of 20",
CITY OF FORT WORTH, FIRST STATES INVESTORS 5000A, LLC
A
GRANTOR GRANTOR
By: ey By:
Dale Fisseler, Asst. City Mgr.
ATTEST: APPROVEDS TO FORM AND LEGALITY
City Secretary 45 5,s+-tity Attorney
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Contract AuthorizatiOR
Date
10
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 Dale Fisseler, 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
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Notary Public in and for the State of Texas
KATHY F.DURHAM
*: * MY COMMISSION EXPIMIS"l
a. January 24,2009
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COUNTY OF §
BEFORE ME, the undersigned authority, a Notary Public in and for the
State of 6WN1voA4on this day personally appeared
611A""A 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 First States Investors 5000A, LLC, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
otary Public in and for the 6 tate of lexas.
ENOTARIAL SEAL
RAH R.CURETON,Notary Public
ntown Boro.,Montgomery Courtymmission Expires March 31.2007
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BankofAmerlm
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5651 E. Lancaster Ave
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Pneumatic Tubes Under Street
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Exhibit "A"
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CERTIFICAFE..OF �NSURANCE- 102-308702
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Hugh Wood Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
The Bellevue, 11th FI. HOLDER, THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
200 South Broad Street ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW
Philadelphia,PA 19102 (215)732-0500 COMPANY COMPANIES AFFORDING COVERAGE
A See Reverse
INSURED COMPANY
American Financial Realty Trust,et al,Wor B Zurich American Insurance Comoanv
First States Group, L.P. COMPANY
(SEE ATTACHED NAMED INSURED ADDENDUM) C See Reverse
1725 The Fairway
Jenkintown, PA 19046 COMPANY
D
COVERAGES
THtS IS TO CERTIFYTHAT 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.
CO
LTRPOLICYEFFECTIVE POUCYEXPIRAnoN
TYPE OF INSURANCE POLICY NUMBER DATE(MMI DDI YY) DATE(MM!DDIYY) LIMITS
GENERAL LIABILITY GENERAL AGGREGATE $2,000,000
X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMPI OF AGG $2,000=0
B1 CLAIMS MADE EIOCCUR GL02871475-07 06/30/05 06/30/06 PERSONAL 3 ADV INJURY $1,000,000
X OWNER'S&CONTRACTOR'S PROT EACH OCCURRENCE $1,000,000
FIRE DAMAGE(Any one fire) $1,000,00D
MED EXP(Any one person) $5,000
AUTOMOBI LE LIABILITY
B ANYAUTO COMBINED SINGLE LIMIT ^$1,0001000
ALL OWNED AUTOS GL02871475-07 06/30/05 06/30/06 BODILY INJURY
SCHEDULED AUTOS (Per person)
X HIRED AUTOS BODILY INJURY
X NON-OWNED AUTOS (Per eedderd)
PROPERTY DAMAGE
GARAGE LIABILITY
AUTO ONLY-EA ACCIDENT _
ANY AUTO OTHER THAN AUTO ONLY.
EACH ACCIDENT
AGGREGATE
EXCESS LIABILITY EACH OCCURRENCE $150.000.000
C MUMBRELLAFORM See Reverse 06/30/05 06/30/06 AGGREGATE $150,000,000
OTHER THAN UMBRELLA FORM
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WORKER'S COMPENSATION AND fC7tYLBu1T5 ER
EMPLOYERS'LIABILITY
EL EACH ACCIDENT _
THE PRO METW INCL EL DISEASE-POLICY LIMIT
PARTNOW DEWTIVE
OFFICERS AFM REXCL EL DISEASE-EA EMPLOYEE
OTHER
A "Special Causes of Loss" See Reverse 06/30/05 06/30/06 SEE REVERSE SIDE
Incl Boiler S Machinery
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS "PFR I or.ATioN I IMr
As respects the Encroachment Agreement at the property located at 5651 East Lancaster Avenue,Fort Worth,TX 76112
I
CERTIFICATE HOLDER CAldCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
City of Fort Worth EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL 30 DAYS WRITTEN
Attn:James F.Miller NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
Department of Development Exhibit „ „
1000 Throckmorton Street
Fort Worth,TX 76102 AUT REPRIESa AT j DTE
Named Insured Addendum
American Financial Realty Trust, et al. Wor
First States Group,L.P. Wor
First States Investors 5000,LLC Wor
First States Investors 5000A, LLC Wor
First States Investors 5000B, LLC Wor First States Group,L.P.
First States Management Corp. LLC
Jones Lane LaSalle Americas, Inc. a Maryland Corporation
Trammell Crow Corporation Wor
Lincoln Harris LLC, as North Carolina Limited Liability Company
Schedule C 200512006
Special
"All Risk"Property Coverage
Covered Items:
1. Buildings including all furfures,fittings,machinery,equipment,materials,supplies,adjoining areas and all other real and personal property which is the
property of the Insured or for which they are responsible.
2. Rental and Business income
3. Boiler and Machinery
Covered:
"All-Risk"of Direct Physical Loss or damage including Terrorism(certified and non-certified)flood and earthquake(excluding
California)and as further specified under policy wording.
Basis of Settlement: Agreed Amount/Replacement Cost Basis Coinsurance: None
Underwriter Limits Policy#747-4819
1 Lexington Insurance Company $100MM on Real and Personal Property,
(Best's Rating A+ XV) Boiler and Machinery and Rental or Business Income.
Sub-Limits:
$100MM Flood
$100MM Earthquake(Excluding Catifomia)
$50MM Florida windstorm
Deductibles: Earthquake-$25,000 Flood-$50,000 except Loss of Objects: Property Damage:$10,000
$500,000 in Zones A&V
Business Income Protection: 24 hour waiting period
Hail: $100,000 each location on habitational properties in the State of Texas Only
Windstorm: 5%of the total Property and Rental Values,for all of Florida,subject to a$250,000 minimum
2%for Tier 1 Counties in NC,SC,GA,MS,LA,AL and TX subject to a$100,000 minimum
All other Perils: $10,000
Underwriters Best's Rating Limits Policy#
1a.Ace Bermuda Ins. Ltd (A+ XV) $50MM excess of $50MM Florida Windstorm HWI00426PO2
2. XL Ins.America,Inc. (A+ XV) $120MM excess of$100MM US00008082PR05A
Sub-Limits:
$50MM Earthquake(excluding California)
$50MM Flood
3.XL Ins.America,Inc (A+ XV) $80MM Excess$220MM US0000BD82PR05A
4.Federal Ins.Co (A++XV) $50MM P/0$100MM excess$300MM 662-2042
United States Fire Ins.Co (A- XII) $25MM P/0$100MM excess$300MM 245-005515
Continental Casualty Co. (A XV) $25MM P/0$100MM excess$300MM RMP 25196654
5.Clarendon National Ins.Co. (A- )) $25MM P/0$200MM excess$400MM PCNIO049
Liberty Mutal Fire Ins.Co (A XV) $25MM P/0$200MM excess$400MM MQ2-L9L-031075-015
Ace America Ins.Co. (A XV) $100MM P/0$200MM excess$400MM CRXD 35854009
Arch Specialty Ins.Co. (A- XIV) $50MM P/0$200MM excess$400MM PRP0O08043-00
6 Underwriters at Lloyds&Co (A XV) $117MM P/0$167MM excess$600MM ALR2597005
Quanta Indemnity Co: (A VII) $25MM P/0$167MM excess$600MM PC07000758-05
RSUI Indemnity Co. (A X) $25MM P/0$167MM excess$600MM NHD411397
7 Axis Reinsurance Co. (A XV) $50MM Excess$767 MM RGB707721-05
8.Underwriters at Lloyds&Co(A XV) $23MM P/0$83MM Excess of$817MM ALR25870-05
Essex insurance Co.. (A XII) $10MM P/O$83MM Excess of$817MM ESP3865
Arch Specialty Ins.Co. (A XIV) $50MM P/O$83MM Excess of$817MM PRP0008043-00
Umbrella Coverages
Companies Affording Coverages Limits Policy Number Best Rating
1.Vigilant Insurance Company $25MM excess Primary (06)79786033 A++ XV
2.St.Paul Fire and Marine Insurance Company $25MM excess$25MM Q109001773 A XV
3,Lexington Insurance Company $25MM excess$50MM 1507657 A+ XV
4.Ace America Insurance Co. $25MM excess 75MM XCPG21976842 R A XV
5.The Ohio Casualty Insurance Company $25MM P/0$50MM x/s$100MM ECO0653105761 A- XI
6.XL Insurance America,Inc. $25MM P/0$50MM x/s$100MM US00007058LI05A A+ XV
f j
Page 1 of 1
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 1/10/2006
DATE: Tuesday, January 10, 2006
LOG NAME: 06YEAGER TUBES REFERENCE NO.: **C-21233
SUBJECT:
Authorization to Enter into an Encroachment Agreement with First States Investors 5000A, LLC,
Authorizing Use of the Right-of-Way to Replace Underground Pneumatic Tubes in Yeager Street
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into an Encroachment
Agreement with First States Investors 5000A, LLC, a Delaware limited liability company, for use of the right
of way to replace existing pneumatic tubes in Yeager Street.
DISCUSSION:
Robert B. Baldwin, AICP, agent for First States Investors 5000A, LLC., is requesting authorization to use
the right-of-way on Yeager Street to replace existing pneumatic tubes. The tubes have been in place
approximately 40 years and need to be replaced. This replacement is part of a remodeling project to be
conducted at the Bank of America property addressed as 5651 East Lancaster Avenue. The facility has
existed at this location since the late 1960's. This request for Encroachment Agreement is needed in order
to obtain a building permit for the remodeling project.
The Encroachment Committee has reviewed this request and is recommending approval.
The encroachment is in COUNCIL DISTRICT 5.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material effect on City funds.
TO Fund/AccountlCenters FROM Fund/Account/Centers
Submitted for City Manager's Office b Dale Fisseler(6140)
Originating Department Head: Bob Riley (8901)
Additional Information Contact: Bob Riley (8901)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 1/27/2006