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HomeMy WebLinkAboutContract 19378 7 LAT GF#9203783/SA/JC ET/ ITY SECRETARY, ON T f I A CT t"0 DRAINAGE EASEMENT ENCROACHMENT AGREEMENT THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT WHEREAS, TEXAS COMMERCE BANK-AUSTIN, NATIONAL ASSOCIATION represents that it is the owner ( "Owner" ) of the real property legally described as Lot A-R-1, Block 2 of MICHAEL HUGHES ESTATES SUBDIVISION, an addition to the City of Fort Worth, Tarrant County, Texas , as recorded in Volume 388-211 , Page 50, of the Plat Records of said Tarrant County ( "Property" ) ; WHEREAS, in connection with the development of the Property, the City of Fort Worth ( "City" ) was granted certain easements (collectively the "Easement") more particularly described in Exhibit A, attached and incorporated herein by reference; and WHEREAS, there exists a portion of a building ( "Encroachment" ) , that extends in, on, over or along the Easement, the Encroachment being more particularly detailed in Exhibit B, attached and incorporated by reference; NOW, THEREFORE, WITNESSETH: That Owner and the City hereby covenant and agree as follows: 1. Owner agrees that the design and construction of any subsequent significant or material replacement, expansion or alteration of the Encroachment will comply with all standards, policies and procedures of the City. Owner must submit a written request for any subsequent significant or material repair, replacement, expansion or alteration of the Encroachment to the City's Director of Transportation/Public Works (the "Director") Al/50204 10747 1842 with plans and specifications, prior to commencement of any work or any preliminary efforts in connection with said work. The Director must indicate in writing within fifteen (15) days of the request (or such other time as allowed by Owner in a written notice provided by Owner to City) that he has no objections to the repair, replacement, expansion, or alteration before owner may commence such work, or it shall be deemed that Director has no objections. Owner hereby releases City from any responsibility or liability in any way related to the plans and specifications. In addition, Owner shall indemnify city in accord with Paragraph 4 below for any responsibility or liability in any way related to the plans and specifications that might be asserted against City by any third party. 2. Owner shall be solely responsible for maintenance of the Encroachment. Owner's maintenance of the Encroachment shall at all times be in compliance with City standards and, in addition, owner shall keep and maintain the Encroachment at all times in safe condition for use by the public. Owner shall be responsible for the Encroachment and shall assume any liability in any way concerning, related to, or resulting from the Encroachment. 3 . Should it become necessary for City to legitimately repair, replace, maintain, remove, enlarge, expand or otherwise alter in any way its public facilities or utilities located in, under, on or over the Easement, and provided city uses reasonable efforts and takes the appropriate course of action to minimize the damage or other adverse consequences to the Encroachment, the City A1/50204 10747 1843 shall not be responsible for any damage or other adverse consequence resulting therefrom to the Encroachment or to owner. Furthermore, owner shall pay all costs incurred by City with respect to any necessary demolition, protection, relocation or removal of the Encroachment resulting from or in any way related to City's actions pursuant to this provision. After the completion of the actions herein referenced by City, Owner may, with the consent of City, proceed to reinstall the Encroachment, at Owner's expense, for so long as it is consistent with the then-use of the Easement and complies in all material respects with the terms of this Agreement. 4 . owner shall indemnify, hold harmless, release and defend City from and against any and all claims, damages, costs, expenses, lawsuits, causes of action, or other adverse consequences related or in any way pertaining to the design, construction, use, maintenance, location or existence of the Encroachment and its appurtenances. The foregoing provision shall apply to the acts or omissions of owner or any third party and shall further include any claims, damages , costs, expenses, lawsuits, causes of action or other adverse consequences to the Encroachment resulting from the negligence of City. In addition, Owner hereby waives any right to assert any claims, damages , costs, expenses, lawsuit, causes of action or other adverse consequences against City that result from, or are related to Owner's use of the Encroachment. 5. If the Encroachment is destroyed or damaged by fire, flood, or any other cause, it may be rebuilt substantially in the A1/50204 10747 1844 same, current location of the Encroachment. However, the replacement or reconstruction of the Encroachment shall be the sole responsibility of Owner, and all costs for the replacement or reconstruction shall be paid by Owner and shall be reconstructed according to plans and specifications approved by the City in accordance with this Agreement. 6. Upon City's written request, Owner agrees to furnish City proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the use, existence and occupancy of the Property, including $100 , 000 .00 per occurrence property damage insurance and $1 ,000 , 000 .00 per occurrence personal injury or death insurance. owner agrees to maintain and keep in force such public liability insurance throughout the term of this Agreement, and failure to do so will be grounds for termination of this Agreement by City, provided city has sent written notice to Owner of City's intent to terminate at least fifteen ( 15) days prior to City's termination of this Agreement. 7 . Owner covenants , agrees and acknowledges that this Agreement is for the sole purpose of permitting Owner to maintain and locate the Encroachment over or within the Easement and is not a conveyance of any right, title or interest in or to the Easement. City covenants , agrees and acknowledges that Owner may maintain and locate the Encroachment over or within the Easement in accordance with the terms of this Agreement. 8 . Should Owner default in the performance of any of the terms, conditions or covenants contained herein, City shall give Al/50204 10747 1845 written notice of the existence of such default, specifying the nature thereof, to owner in the manner provided in this Agreement. Owner shall have a period of sixty (60) days after written notice thereof is given to owner to remedy such default; provided, however, that in the event such default is not reasonably susceptible of cure within such sixty (60) day period, such cure period shall be extended for so long as Owner has commenced cure within such sixty (60) day period and is diligently pursuing the cure thereafter. Provided, further, that the sixty (60) day cure period provided for herein shall not be applicable to the breach of the covenant to maintain insurance provided for in Section 6 of this Agreement. 9. In the event owner's time to cure has expired, city may, upon written notice to owner, terminate this Agreement and/or take any other action available at law or in equity to enforce the terms of this Agreement or seek damages, including but not limited to, the right to require owner to remove the Encroachment. 10 . In the event this Agreement is terminated as herein provided, Owner shall remove the Encroachment on or before ninety (90) days after such termination at Owner's sole expense. Should Owner fail to timely remove the Encroachment, City shall have the right to remove the Encroachment. City shall incur no liability to Owner as a result of such removal , and owner hereby releases and indemnifies City and holds it harmless from any such liability. All reasonable charges incurred by City in connection with such removal shall be borne by owner and shall be a personal liability Al/50204 10747 1846 of Owner and in addition shall constitute a lien against the Property. Said lien shall be perfected by filing an affidavit in the Deed Records of Tarrant County, Texas, specifying the amount of the lien and the work performed and making reference to this Agreement, and a copy thereof shall be provided to owner on or before ten ( 10) days after such affidavit is filed. 11 . Owner and City mutually agree that city, acting by and through its duly authorized agents, officers , servants or employees, shall have at any time the unrestricted right to enter the Property to examine and inspect the Encroachment and its appurtenances to determine if owner has complied with its obligations hereunder. 12 . This Agreement shall run with the Property and shall be binding upon City and owner and their respective successors and assigns and shall continue in effect so long as the Encroachment shall remain over, across and within the Easement or until expressly released by written document executed by owner and City, or their successors and assigns , or until terminated by city in accordance with this Agreement. It is expressly agreed, however, that, in the event owner at some future date should sell the Property and concurrently therewith assign this Agreement and the obligations hereunder, all further rights, liabilities and obligations under this Agreement shall be assumed by owner's successors and assign; provided that owner shall give to City written notice of any such assignment at or shortly after such assignment. Upon such notice, assignment, and assumption of the A1/50204 10747 1847 obligations hereunder by the new owner of the Property, owner shall have no further liability or obligations to City in connection with this Agreement. 13 . Owner shall operate hereunder as an independent contractor and not as an officer, agent, servant or employee of City. Owner shall have the exclusive right to control the details of the work and services performed under this Agreement, the exclusive right to control all persons performing work or services, and Owner shall be solely responsible for the acts and omissions of its officers , agents , servants, employees , representatives, and independent contractors. The doctrine of respondeat superior shall not apply as between City and owner, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Owner. 14. When this Agreement is executed, owner agrees to deposit with city a sufficient sum of money that will pay the fees for recording this Agreement in the Deed Records of Tarrant County, Texas. After this Agreement is recorded, it shall be returned to the city Secretary of the City of Fort Worth and a copy shall be forwarded to owner. 15 . In any successful action brought by City or Owner for the enforcement of any obligations hereunder, the prevailing party shall be entitled to recover its court costs, expenses , and reasonable attorneys' fees. Al/50204 10747 1848 16 . 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. 17 . Any notice required hereunder shall be effective as of the date it is deposited in United States mail , certified, return receipt requested. The notices shall be effective when addressed as follows, provided the party making the notice has not received written notification of a change in same: To Owner: To City: Texas Commerce Bank-Austin, City of Fort Worth National Association Department of Transportation 700 Lavaca and Public Works Austin, Texas 78701 Fort Worth, Texas 76102 Attention: President Attention: Director 18 . The failure or inaction by City in enforcing any of its rights or privileges hereunder shall not constitute a waiver of City's ability to subsequently enforce such rights or privileges. 19 . The covenants and agreements set forth herein shall constitute a servitude upon and shall run with the Property and shall be binding upon Owner and its successors in interest to the Property or any part of the Property. Notwithstanding anything to the contrary contained in this Agreement, Owner shall have the right to transfer and assign, in whole or in part, all its rights and obligations hereunder and in the Encroachment and the Property, and in such event and upon such transfer, no further liability or obligation shall thereafter accrue against Owner hereunder. 20. The term "Owner" as used herein shall mean owner and shall include the heirs, successors and assigns of Owner, as well as its agents, servants , employees, representatives and independent AI/50204 10747 1849 contractors; and it shall include anyone claiming ownership of the Property, in possession thereof, the record-title holder, and/or the legal title holder. 21 . The term "City" as used in Paragraph 4 herein shall include the agents, representatives , servants, employees , and independent contractors of the City of Fort Worth. 22. With respect to any of owner's obligations hereunder, any lender having a lien on the Property (a "Lender" ) shall have the right, but not the obligation, to perform such act in lieu of the Owner performing such act. In addition, anywhere in this Agreement that City must provide written notice to Owner, City shall send Lender a copy of such notice provided that Lender has provided City with written notice of its address and its interest in the Property. 23 . Should any portion of this Agreement be determined to be illegal , unconstitutional , or otherwise unenforceable, the remaining portions of this Agreement shall continue in force and remain effective and shall be construed consistently with the originally intended purposes of this Agreement. 24 . This Agreement may be amended by written amendment executed by Owner and City. This Agreement and any subsequent written amendments shall constitute the entire agreement of the parties and shall supersede any prior or contemporaneous oral or written agreements pertaining to the subject matter contained here A1/50204 10747 1850 SIGNED this 11 day of u 1992 . TEXAS COMMERCE BANK-AUSTIN, NATIONAL ASSOCIATION By: ITOURY- Name: T�n /2_4L�4QJ Io GNA!Zift Title: MAY T B r L&GjBZZ ATTEST CITY OF FORT WORTH By: A ' City Secretary Name: RO-McL rL"�!CLv-0jn Title: 17�ssis+v, C_V±4 Mo_n"er APPROVED AS TO FORM AND LEGALITY: Assistant City A rney Vol THE STATE OF TEXAS COUNTY OF TRAVIS BEFORE ME, the updersig ed t Public on this day personally appeared known to be to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said Texas Commerce Bank-Austin, National Association, a national banking association, and that (s)he executed the same as the act and deed of such national banking association for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN under my hand and seal of office this day of 1992. Notary Public in and for .7777= 1,PICIA the State of Texas Print Name: My commission expires: A1/50204 _10- 10747 1851 THE STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, a Notary Public in and fo�j the State of Texas, on this day personally appeared f'61MOA) 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 as the act and deed of The City of Fort Worth for the purposes and consideration therein expressed. nn GIVEN UNDER MY HAND AND SEAL OF OFFICE this, the day of 1992 . y JEANEWE SCOTT 40t"ftbft Notig�ry Public in and for STATE OF TEXAS the State of Texas Print Name: -r- jFqrt1.CA1A1,C, S�k!&7 my Om" Exo,JUNE2a 19" my commission expires: Al/50204 10747 1852 EXHIBIT A Drainage Easement fifteen ( 15' ) feet in width along the east property line, as shown on plat recorded in volume 388-211 , Page 50, of the Plat Records of Tarrant County, Texas, and Drainage Easement to City of Fort Worth dated October 28, 1986, executed by Fort Worth Properties, Ltd. , recorded in Volume 8945, Page 1120 , of the Deed Records of Tarrant County, Texas. 10747 1853 EXHIBIT B-1 •,.- fewer °o/C. qO Rcrn.w.r�c✓Cr Go t trS Sh `V� 0 lPCrriai m r dmr Gar` j Encroachment QLocation per o�•o�iv :a __ n -5`- 69 p 4 '2/ _E. � �.' a 0 7 oa:air..•--a- __ :5_ 11 M�nho.G _io'S dr.4'r..wvr' I ¢, r-7 h 3 15 ' Drainage c 11 I �r Easement /_% I Co�C%CfC u/B/� 23.6 .. 2-3 mr/c�J / — — Vol. 308.211, Page 50 Ave 7 GaIRs/ ,sacs aod r 0 CC v' Gc ier i LU e i 'r —LOT - A -R- �V D192161973 LAWYERS AMERICAN TITLE 1330 SUMMIT AVE FT WORTH, TX 76102 -W A R N I N G-THIS IS PART OF THE OFFICIAL RECORD--D 0 N 0 T D E S T R O Y F I L E D -- T A R R A N T C 0 U N T Y T E X A S S U Z A N N E H E N D E R S 0 N -- COUNTY CLERK O F F I C I A L R E C E I P T T 0: LAWYERS AMERICAN TITLE RECEIPT NO REGISTER PRINTED DATE TIME 192281341 DR92 08/21/92 16 : 20 INSTRUMENT FEECD FILED TIME 1 D192161973 WD 920821 16 : 20 CK 2202 T O T A L DOCUMENTS: 01 F E E S : 30 . 00 B Y: 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. 10747 1856 AWA LAWYERS AMERICAN TITLE COMPANY MPNIN OF FORT WORTH October 5, 1992 David Yett City Attorney's Office City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 Re: Our GF#9203783/SA/JC Property: University Park Village Shopping Center Fort Worth, Texas Dear Mr. Yett: Enclosed please find the original recorded Drainage Easement Encroachment Agreement which has been returned to my office by the Tarrant County Clerk's office. If you have any questions or require anything further, please do not hesitate to call my office. Thank you. Sincerely, J a Cloud ice P Clou President ,--'National Accounts /jc Enclosures 1330 SUMMIT AVENUE 9 FORT WORTH,TEXAS 76102-4456 • (817)335-5741 METRO(817)429-2100