HomeMy WebLinkAboutContract 31944 CITY SECRETARY
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ENCROACHMENT AGREEMENT CONTRACT NO.
ISTATE 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
ASMARA Affordable Housing, Inc. acting herein by and through its duly authorized
Vice-President, Joseph WiedorFer hereinafter referred to as "Grantee", Owner of
the property located at 6218 Finbro Drive, Fort Worth, Texas 76133 and its legal
description is Lot 5, Block 1, McCart East Addition, out of the JMB Smith Survey,
Abstract 1412 to the City of Fort Worth and recorded in the Plat Records of
Tarrant ("Property").
WITNESSETH:
1.
For and in consideration set out below and the true and faithful
performance of the mutual covenants herein contained, City hereby grants to
Grantee permission to construct/ install, maintain, repair, replace and/or allow to
remain, improvement(s) ("Improvement") that encroaches upon, uses and/or
occupies portions of the public rights-of-way and drainage improvements shown
on Exhibit A, B, & C. Exhibit C is still being developed; once it is completed the
Parties agree it will be attached to this Agreement and shall be incorporated for
all purposes. The Improvement(s) are described as follows:
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A Gabion Retaining wall constructed, at the location and description
of said Improvement and the encroachment is more particularly
described in Exhibit A, B & C, attached hereto, incorporated herein
and made a part hereof for all purposes.
For purpose of construction, repair, replacement, maintenance and
inspection of the Improvement, the City further grants to Owner a right of access
upon the City's public rights of way and drainage improvements depicted upon
said Exhibit A, B, and Exhibit C.
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 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
unreasonably withheld, conditioned or delayed. Furthermore, such approval
shall not relieve Grantee of responsibility and liability for concept, design and
computation in preparation of such plans and specifications.
3.
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Upon completion of construction and installation of said Improvement and
thereafter, there shall be no encroachments in, under, on or above the public
rights-of-way and drainage easement involved, except as described herein and
shown on the hereinabove referred to Exhibit A, B & C.
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 reasonable additional cost as determined by the City.
5.
City may enter and utilize the referenced areas at any time for the purpose
of installing or maintaining improvements reasonably necessary for the health,
safety and welfare of the public or for any other public purpose. In this regard,
except for City's own negligence or willful misconduct, 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.
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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 construct the Gabion retaining wall at no cost to City and City
acknowledges that such wall benefits the City by helping prevent erosion of the
drainage channel. The City further agrees that upon the termination of this
Agreement, title to the Improvements shall pass automatically to the City without
the necessity of any further writing as if this Agreement were a Bill of Sale.
7.
The term of this Agreement shall be for twenty years, commencing on the
date this Agreement is executed by the City of Fort Worth.
8.
Owner hereby gives City permission to remove the Improvement to
construct further improvements to the channel, as the City deems necessary
provided that such removal and further improvements by the City do not
adversely impact or otherwise impair the stabilization of the Property through the
prevention of erosion of the drainage channel.
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
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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 if 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 terminated as to the affected portions
of the Improvements and the parties obligation shall automatically cease as to
the affected portions of the Improvements.
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.
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.
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12.
Mechanics' Liens. Grantee will not cause or permit any mechanics' liens or other
liens to be filed against City's Property by reason of any work, labor, services, or
materials supplied or claimed to have been supplied to Grantee or anyone
holding the Grantee's Property or any part of it through or under Grantee. If such
a mechanic's lien or materialman's lien is recorded against City's Property,
Grantee must either cause it to be removed or, if Grantee in good faith wishes to
contest the lien, take timely action to do so, at Grantee's sole expense. If
Grantee contests the lien, Grantee will indemnify City and hold it harmless from
all liability for damages occasioned by the lien or the lien contest and will, in the
event of a judgment of foreclosure on the lien, cause the lien to be discharged
and removed before the judgment is executed.
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.
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Insurance Requirements
The Grantee shall not commence work under this Agreement until it has
obtained or until Grantee or its contractor has obtained all insurance required
under this Agreement and such insurance has been approved by City and
certificates of insurance have been delivered to City, The Grantee shall be
responsible for delivering to the City the sub-contractor's certificate of insurance.
The Grantee shall indicate on its certificate of insurance whether or not its
insurance covers sub-contractors. It is the intention of the City that the insurance
coverage required herein shall include all sub-contractors. Failure of the Owner
to request required insurance documentation shall not constitute a waiver of the
insurance requirements specified herein.
COMPENSATION INSURANCE:
Grantee or its contractor shall maintain, during the construction of the
Improvement, Worker's Compensation Insurance on all of his employees to be
engaged in work on the project under this Agreement, and for all sub-contractors.
In case any class of employees engaged in hazardous work on the project under
this contract is not protected under the Worker's Compensation Statue, the
Grantee shall provide adequate employer's liability insurance for the protection of
such of his employees not so protected. Worker's compensation insurance
covering employees employed on the project site shall be endorsed with a waiver
of subrogation providing rights of recovery in favor of the City.
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COMMERCIAL GENERAL LIABILITY INSURANCE:
The Grantee shall procure and shall maintain during the life of this
contract, Commercial General Liability Insurance (Public Liability and Property
Damage Insurance) in the amount not less than $500,000 covering each
occurrence with a $1 ,000,000 aggregate. Certificates of insurance shall state
that Insurance is on an "occurrence" basis.
AUTOMOBILE INSURANCE BODITY INJURY AND PROPERTY DAMAGE:
Grantee shall procure and maintain during the construction of the
Improvement, Comprehensive Automobile Liability Insurance in an amount not
less than $250,000 for injuries including accidental death to any one person and
subject to the same limit for each person an amount no less than $500,000
aggregate on account of one accident, and automobile property damage
insurance in an amount not less than $100,000 aggregate; provided, however
that City shall accept in satisfaction of this requirement Company's combination
of single limit auto coverage and excess/umbrella limits in such reasonable
amounts as currently maintained by Company as of the date hereof.
SCOPE OF INSURANCE AND SPECIAL HAZARD:
The insurance required under the above paragraphs shall provide
adequate protection for the Grantee and Grantee's sub-contractors, respectively,
against damage claims which may arise from operations under this contract,
whether such operations be by the insured or by anyone directly or indirectly
a
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employed by him and also against any of the following special hazards which
may be encountered in the performance of the Contract.
The Contractor's liability shall not be limited to the specified amounts of
insurance required herein.
PROOF OF INSURANCE:
All insurance requirements made upon the Grantee's contractor shall
apply to the sub-contractors, should the Prime Contractor's insurance not cover
the sub-contractor's work operations. The City agrees to accept certificates of
insurance obtained by the sub-contactors in satisfaction of the insurance
requirements hereunder.
DEDUCTIBLE LIMITS:
The deductible limits or self-funded retention limits, on each policy must
not exceed $10,000 per occurrence unless otherwise approved in writing by the
Developer and the City.
CITY RESPONSIBILITIES:
The City shall not be responsible for direct payment of insurance premium
costs for Contractor's Insurance.
ADDITIONAL INSURANCE REQUIREMENTS
1 . The City, its officers, employees and servants shall be endorsed as an
additional insure on Grantee or Grantee's insurance policies excepting
Contractor's workers' compensation insurance policy and the
associated employer's liability insurance coverage thereunder.
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2. Each insurance policy shall be endorsed to provide that the insurer will
endeavor to provide to the City a minimum of thirty days notice of
cancellation, non-renewal, and/or material change in policy terms
coverage. A ten days notice shall be acceptable in the event of non-
payment of premium.
3. Insurers must be authorized to do business in the State of Texas and
have a current A.M. Best rating of A: VII or equivalent measure of
financial strength and solvency.
4. Other than worker's compensation insurance, in lieu of traditional
insurance, City may consider alternative coverage or risk treatment
measures through insurance pools or risk retention groups. The City
must approve in writing any alternative coverage, such approval not to
be unreasonably withheld, conditioned or delayed.
5. Grantee or Grantee's insurance policies shall each be endorsed to
provide that such insurance is primary protection and any self-funded
or commercial coverage maintained by City shall not be called upon to
contribute to loss recovery.
6. In the course of the project, Grantee shall report, in a timely manner, to
City's officially designated contract administrator any known loss
occurrence which could give rise to a liability claim or lawsuit or which
could result in a property loss.
7. Grantee's liability shall not be limited to the specified amounts of
insurance require herein.
8. Upon the request of City, Contractor shall provide complete copies of
all insurance policies required by these contract documents.
15.
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
to
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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, EXCEPT TO THE
EXTENT CAUSED, BY NEGLIGENCE OR WILLFUL MISCONDUCT 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 EXCEPT
TO THE EXTENT ATTRIBUTABLE TO THE NEGLIGENCE OR WILLFUL
MISONDUCT OF THE CITY.
16.
In any action brought by the City for the enforcement of the obligations of
Grantee, City shall be entitled to recover interest from the date of final judgment
until such amount is paid at a rate not to exceed the prime rate as announced by
the largest bank in the City of Fort Worth plus 2%, and reasonable attorney's
fees.
17.
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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 shall be void.
18.
This Agreement shall be binding upon the parties hereto, their successors
and assigns.
19.
This Agreement shall only be amended in writing and signed by all of the
parties hereto.
EXECUTED this 1-/14 day of Mow , 20 OX.
CITY OF FORT WORTH, GRANTOR ASMARA AFFORDABLE HOUSING,
INC., GRANTEE
fl"'
By: By:
ly
Marc Ott, Asst. ity Manager Title: 4 .s 1.er..*'
ATTEST: APPROVED AS T ORM AND LEGALITY
City Secretary �J � �f C' Attorney
Contract A tho i tion
)' ^
Date
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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 Marc Ott, 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
200-17' .
HETTIE LANE Notary Public in and for e
My COMMISSION EXPIRES.
July 26,2Qo7 State of Texas
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STAT F .A
CO NTY OF §
BEFORE ME, the undersigned authority, a Notary Public in and for the
State of Texas, on this day personally appeared Joseph Wiedorfer, 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 Asmara Affordable
Housing, Inc. and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
Not ry Public innd r th <
xas CI, �>�-��
Stephanie Givens, Real Property Manager
M C: '40117 DATE " ��-�OOo' City Of bort Worth
EnginCcl-1I1. l)c:j);irtlllcttt
G Veh s Real Property Ser:'Ices
AGENT
DOE ����► 900 Monroe Strc(( State 302
Fort Worth 'Texas 76102-6302
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,
/ TOTAL SQUARE FACE FEET
,tip• OF WALL TO BE "NTAINED
11207.5D'
(THIS NUMBER INCLUDES
SQUARE FEET OF GABION
MATR ESS)
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ANTICIPATED LIFE
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CREEK HOLLOW APARTMENTS GABION EROSION CONTROL STRUCTURE
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CITY OF FORT WORTH t` ? {'•
REAL PROPERTY DIVISION •.+•:•
1000 THROCKMORTON
FT WORTH TX 76102
Submitter: CITY OF FORT WORTH/REAL PROPERTY - 001 ZCFVI
SUZANNE HENDERSON
TARRANT COUNTY CLERK
TARRANT COUNTY COURTHOUSE
100 WEST WEATHERFORD
FORT WORTH, TX 76196-0401
DO NOT DESTROY
WARNING - THIS IS PART OF THE OFFICIAL RECORD.
Filed For Registration: 06/21/2005 08:49 AM
Instrument#: 0205174292
A 17 PGS $44.00
By: -
I I��III�I�I� ILII��I�I�II�I ILII I��II�I�I�IIT I�II�III I��
D205174292
ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE
OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR
RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.
M & t : 1 . DATF f�5
AGENT lD ;U - DOE r {
Page 1 of 1
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 6/7/2005
DATE: Tuesday, June 07, 2005
LOG NAME: 30ASMARA REFERENCE NO.: **C-20777
SUBJECT:
Authorize an Encroachment Agreement between the City of Fort Worth and ASMARA Affordable
Housing, Inc.
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into an Encroachment
Agreement with ASMARA Affordable Housing, Inc., authorizing use of a public drainage easement for a
retaining wall at 6218 Finbro Drive.
DISCUSSION:
The Department of Engineering is requesting that the City of Fort Worth enter into an Encroachment
Agreement (agreeement) with ASMARA Affordable Housing, Inc., for the purpose of constructing and
maintaining a retaining wall (wall) to serve the Creek Hollow Apartments. The wall will be constructed within
a public drainage easement to address existing and anticipated erosion from the drainage channel and the
private property of ASMARA Affordable Housing, Inc.
The future assignment of the encroachment agreement to a third party must be approved by the City
Manager or his/her designee.
The easement is located in COUNCIL DISTRICT 6.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material effect on City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by; Marc Ott (8476)
Originating Department Head: A. Douglas Rademaker (6157)
Additional Information Contact: A. Douglas Rademaker (6157)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 08/16/2005