HomeMy WebLinkAboutContract 43390-AD2 Page 1 of 13 CIMECRUAW
COW PACT NO.
Electronically Recorded Tarrant County
Official Public Records 12/2/2013 11 15 Awl D213306528
NOTICE OF EDI 1!1 TY4RIGHTS: I OiI 3ARE 5�4ATURAL PERSON,
YOU MAY RE LF`ouip%ar�f17RIKE ANY OltSubt tler. 9iVPIT FOLLOWING
INFORMATION FR M ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
RFIAL PROPERTY BEFORE YT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRI'VER'S LICENSE NUMBER.
91V003 ._../'70-7 o Subsurface Tasement Agreement
Date: November 26 2013
Grantor: HE Properties, Ltd., a Texas limited partnership
Grantor's Mailing Address;
c,o MPC Vickery,LLC
1903 Central Drive, Ste 406
Bedford,T3:76021
Grantee: City of Fort North, a Texas home rule municipal corporation
Grantee's Mailing Address:
1000 `I'hrockmorton
Fort Worth,Texas 76101
Grantor's Property: Lot I and East one-half of Lot 6, Block 3, Jennings South Addition, an
unrecorded addition, in the City of Fort Worth, 'Tarrant County, Texas, as more .particularly
described on Exhibit A attached hereto and incorporated herein by this reference.
Easement Property: The subsurface of a portion of Grantor's Property ten feet (10') wide and
two hundred ten feet(210') long,which portion contains an underground existing concrete storm
sewer drain line (the "Storm Drain") approximately seven(7') wide, eight feet (8') tall, and two
hundred ten feet(210') long. The Basement Property is shown on the City of Fort Worth Public
Works plans, as such plans are shown and noted on the survey of Granter's Property prepared by
J.13. Davis, 111, R.P.L.S. No. 4368, dated November 15, 2013, which survey is attached hereto as
Exhibit B and incorporated herein by this reference.
Easement Purpose: For maintaining,repairing, and- necessary, replacing the Storm Drain on
the Terms and Conditions set forth herein.
Consideration: The sum of TEN AND NO/100 DOLLARS ($10.00) cash in hand paid, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Grantor and Grantee.
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Reservations from Conveyance: Grantor reserves :for itself and its successors and assigns the
right to use the Easement Property in common with Grantee so long as the use of the Easement
Property by Grantor does not preclude or unreasonably interfere with the use of the Easement
Property for the Easement Purpose by Grantee. Without limiting the foregoing or any other
provision of this Easement, it is expressly agreed that Grantor shall have the unrestricted right to
construct, install, repair, rebuild,maintain and replace all existing and lltture buildings and other
improvements located on the entirety of the surface of Grantor's Property, including, but not
limited to, those buildings and improvements on that portion oi' Grantor's Property over the
Easemment. Property, so long as Grantor otherwise complies with the applicable provisions of the
Charter, Ordiu>a ces and Codes of Grantee. It is the intention and agreement of Grantor and
Grantee that no additional burden shall be placed on Grantor's Property or the development
thereof by Grantor by virtue of the location of the Easement Property and the Stone Drain
beneath Grantor's Property.
Exceptions to Warranty: Validly existing easements, rights-of-way, and prescriptive rights,
whether of record or not; all presently recorded and validly existing restrictions, reservations,
covenants, conditions, oil and gas Ieases, mineral interests, and water interests outstanding in
persons other than Grantor, and other instruments of record that affect the Property; validly
existing rights of adjoining owners in any improvements situated on a common boundary; any
discrepancies+ conflicts, or shortages in area or boundary lines; any encroachments or
overlapping of improvements; and taxes and assessments for 2013 and subsequent years.
Grant of Easement: Grantor, for the Consideration and subject to [lie Reservations from
Conveyance, Exceptions to Warranty, and Perms and Conditions set forth herein, grants, sells,
and conveys to Grantee and Grantee's successor,, and assigns a subsurface easement through and
beneath the Easement Property for the Fasernent Purpose for the benefit of Grantee (collectively,
the "Easement"), to have and to hold the Easement to Grantee and Grantee's successors and
assigns forever. Grantor binds Grantor and Grantor's successors and assigns to warrant and
forever defend the title to the Easement in Grantee and Grantee's heirs, successors, and assigns
against every person whomsoever lawfully claimizrg or to claim the Easement or any part
thereof, except as to the Reservations from Conveyance, Exceptions to Warranty, and Terms and
Conditions set forth herein, to the extent that such claim arises by, through, or under Grantor but
not otherwise. Grantee shall have no right to use any part of the surface of Grantor's Property,
the Fasement being a subsurface easement only, except as set forth herein. Grantee
acknowledges and agrees that the Easement is Grantee's only right or interest 'With respect to
Grantor's Property. Grantee expressly waives, releases and disclaims any right, title or interest
in or to Grantee's Property, including, but not limited to, any claimed easement by prescription,
easement by necessity, or any other implied or equitable easement interest, except the t asement
described herein.
Terms and Conditions: The following terms and conditions apply to the Easement:
1. Grantee's maintenance, repair, and, if necessary, replacement of the Storm Drain, use of
the Easement, and all other rights of Grantor with respect to the Storm Drain and
Easement, as it relates to Grantor's Property, shall be governed solely by the terms
hereof.
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2. The Storm Drain is, in part, beneath a portion of the existing two-story building
("Building") located on Grantor's Property as shown on Exhibit B.
3. Grantee may not and will not expand the Storrs Drain or relocate the Storm Drain on
Grantor's Property. Grantee will only replace the Storm Drain if there is a necessity
to do so and there is no practicable alternative to replacement.
4. Grantee acknowledges and agrees that Grantor may construct, install, repair, rebuild,
maintain and replace on Grantor's Property all parking, landscaping. fences, drive
ramps, loading docks, balconies, hardscapes, awnings, lighting, irrigation,
downspouts, drains, A.DA-compliant access facilities, and other improvements on and
across the Easement Property as Grantor may desire, in compliance with the
applicable provisions of tine Charter, Ordinances,and Codes of Grantee.
>. Grantor may also, in compliance with the Charter, Ordinance; and C.'odes of Grantee,
make such improvements to the interior of the Building as Grantor may desire
including, but not limited to, interior improvements consistent 'with the use of
Grantor's Property, in whole or in part, for commercial, retail, office, or residential
purposes, or any combination thereof.
6. Grantee represents to Grrantor that Grantee can access the Storm Drain and Easement
Property either from inside the Storm Brain itself or from outside the Storm Drain
and Easement Property via entry originating from the public rights-of-way presently
known as Lipscomb Street or Vickery Boulevard. Grantee understands,
acknowledges, and agrees that accessing the Storm Drain for maintenance, repair, or,
if necessary, replacement from inside the Building would cause material damage to
the Building, interfere with the operation thereof, and result in losses to Owner and
that accessing the Storm Drain from other parts of Grantor's Property (outside the
Building) would cause material damage to the balance of the affected portion of
Grantor's Property, interfere with the operation thereof, and result in losses to Owner.
Accordingly, Grantee agrees that Grantce will access the Storm Drain either (i) from
inside the Storm Drain itself and not from the surface of Grantor's Property or (ii)
from outside the Storm Drain and Fasennent Property via entry originating from the
public rights-of-way presently known as Lipscomb Street or Vickery Blvd. Grantee
shall access the Storm Drain pursuant to 6(ii) only if access pursuant to 6(i) is not
practicable. hn the event of access to the Storm Drain pursuant to 6(ii), Grantee shall
have and Grantor hereby grants a temporary subsurface construction easement on
either side of the Easement. Property which shall on each side be a width equal to
either five feet (5') or such Iesser width as Grantee may own alongside the Easement
Property, provided, such access must not interfere with Grantor's use of or access to
the Property or the improvements thereon. Notwithstanding the above, in the event
no other reasonable alternative exists or in the event of an emergence, Grantee may
access the Storm Drain or Easement Property from the surface of Grantor's Property
outside the Building, which access is subject to all requirements of Section 7 below.
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7. In the case of access to the Storm Drain.or Fasement Property by Grantee:
(a) Grantee shall give Grantor reasonable prior notice and; except in the case of
emergency, in no event less than fifteen (15) days;
(b) Grantee shall be responsible for maintaining and not reducing in any respect
the present subsurface support for the Building located in the Easement
Property;
(e) `i all respects Grantee shall use its best efforts to conduct any necessary
maintenance,repair, or, i f necessary,replacement efforts in a Manner designed
to limit and minimize any damage to or adverse effect on Grantor's Property
and the Building, and Grantee shall, at its sole Cost and expense, promptly
repair and restore Grantor's Property and the Building and all improvements
to same should they be damages{ by Grantee or its employees or contractors
due to (1) the negligence of Grantee, its employees, agents, or contractors, or
(ii) Grantee's failure to maintain the Storm Drain pursuant to standards
consistent with the City's inaintellance program for its drainage system. Any
such repair and restoration shall restore (.he Building or Improvements to as
near as possible to their condition as existed prior to the damage by Grantee;
(d) Once commenced, all work by Grantee shall be Completed as promptly as
possible; and
(e) Grantee shall, if requested by Grantor, consult and coordinate with Grantor
and Grantor's engineers or construction consultants concerning any work to
be done by Grantee pursuant to the circumstances described in 7(c) above and
Grantor shall have the right to approve the plans and specifications for any
required restoration work with respect to Grantor's Property and the Building
prior to commencement thereof.
If Grantee does not promptly perform the repair or restoration obligations above,
Grantor may perform the necessary repair or replacement, and Grantee shall promptly
reimburse Grantor for the actual costs thereof.
8. Terinination. The Easement shall terminate for all purposes as follows:
(a) If grantee at any time hereafter installs or constructs any new drainage facility
(the 'New Drainage Facility") off Grantor's Property but in the vicinity of
Grantor's Property that can be designed, modified, or adapted to handle the
stone sewer drain capacity of the Storm brain, then, subject to any necessary
approvals by Grantee's City Couned, Grantee shall install or construct the
New Drainage facility and commencement of the Use thereof in a mariner to
handle the storm sewer drain capacity of the Storm Drain and upon
completion of the New Drainage Facility Grantor shall cease to use the
Easement and the Easement shall terminate without further act by any party
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(but, upon request of Grantor, Grantee will execute and deliver in recordable
form a release of the Easement); and
(b) if Grantee defaults under any obligation, term, or condition of the Easement,
and such default is not cured within thirty (30) days after written notice
thereof from Grantor to Grantee (provided, if Grantec has diligently pursued
cure of the default within such thirty (30) day period but such default is not
reasonably curable within thirty(30) calendar days, then such amount of tune
that the parties reasonably agree is necessary to cure such default), Grantor
may (i) perform Grantee's obligations, for which Grantee shall promptly
reimburse Grantor for its actual costs therefor, or (ii) pursue all other rights
and remedies that may be available to Grantor under the law or in equity.
9. Character of Easement, The Easement is personal to Grantee, and may not be assigned
by Grantee in whole or in part.
10. Duration of*Easement. The duration of the Easement is perpetual.
11.Additional Reservation of Rights. Grantor reserves for Grantor and Grantor's successors
and assigns the right to convey to others the right to use all or part of the Easement in
conjunction with Grantee, as long as such further conveyance is subject to the tenus
of this agreement.
12. RELEASE. GRANTEE RELEASES GRANTOR FROM ANY LOSS, COST,
EXPENSE, DAMAGE, OR LIABILITY OF ANY KIND, INCLUDING
ATTORNEYS' FEES AND COSTS OF DEFENSE, ARISING 01JT OF OR
RELATED TO THE STORM DRAIN, GRANTEE'S USE OF THE
EASEMENT PROPERTY, GRANTEE'S USE OF THE EASE MENT, OR ANY
USE OF THE SURFACE OF GRA NTOR'S PROPERTY.
13.Attornev'.c Fees. If either party retains an attorney to enforce this agreement, the party
prevailing in litigation is entitled to recover reasonable attorney's fees and court and
other costs.
14. Binding Effect. This agreement binds and inures to the benefit of the parties and their
respective successors and assigns (but this provision does not change the fact that the
Easement is passed to Grantee).
15. Choice of Lativ. This agreement will be construed under the laws of the state of Texas,
without regard to choice-of-law rules of any jurisdiction_ Venue is in the county or
counties in which the Easement Property is Iocatcd.
16, Counterparts. This agreement may be executed in any number of counterparts with the
same effect as i f all signatory parties had signed the same document. All counterparts
will be construed together and will constitute one and the samc instrument.
17, iYaiver of Default. It is not a waiver of or consent to default if the nondefaulting party
fails to declare immediately a default or delays in taking any action. Pursuit of anv
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remedies set forth in this agreern.eut does not preclude pursuit of other remedies in
this agreement or provided by law.
18. Further Assurances. Each signatory party agrees to execute and deliver any additional
documents and instnunents and to perform any additional acts necessary or
appropriate to perform the terns,provisions, and conditions of this agreement and all
transactions contemplated by this agreement.
19. Entire Agreement. This agreement and any exhibits a-re the entire agreement of the
parties concerning the Storm Drain and Easement Property and the grant of the
Fasement by Grantor to Grantee. There are no representations, agreements,
warranties, or promises; and neither party is relying on any statements or
representations of any agent of the other party, that are not in this agreement and any
exhibits.
20. Legal Construction. If any provision in this agreement is fen- any reason unenforceable,
to the extent the "enforceability does not destroy the basis of'the bargain among the
parties, the unenforceability will not affect any other provision hereof, and (his
agreement will be construed as if the unenforceable provision had never been a part
of the agreement. Whenever context requires, the singular will include the plural and
neuter include the masculine or feminine gender, and vice versa. Article and section
headings in this agreement are for reference only and are not intended to restrict or
define the text of any section. This agreement will not be construed more or less
favorably between the parties by reason.of authorship or origin of language.
21. Notices. Any notice required or permitted under this agreement must be in writing. Any
notice required by this agreement will be deemed to be delivered (wheth.er ac(tally
received or not) when deposited with the United States Postal Service, postage
prepaid, certified mail, return receipt requested; and addressed to the intended
recipient at the address shown in this agreement. Notice may also be given by regular
mail, personal delivery, courier delivery, or other commercially reasonable.means and
will be effective when actually received. Any address for notice may be changed by
written notice delivered as provided herein.
22. Recitals. Any recitals in this agreement are represented by the parties to be accurate, and
constitute a part of the substantive agreement.
23. Time. Time is of the essence. Unless otherwise specified, all references to "days" mean
calendar days. Business days exclude Saturdays, Sundays, and legal public holidays.
If the date for performance of any obligation falls on a Saturday, Sunday, or legal
public holiday, the date for performance will be the next following regular business
day.
24. Force Xlajeure. Grantor shall not be liable for any delay or failure in performance due
to any reason or unforeseen circumstance beyond the affected party's reasonable
control. Including, shortages or delays in obtaining materials from suppliers that
cannot reasonably be Cured by obtaining the needed materials from another source;
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work stoppages not involving employees of either party that cannot reasonably be
overcome, fires, riots, rebellions, ears, acts of terrorism, accidents, explosions,
floods, storms, acts of Cod; and similar occurrences. The obligations and rights of the
excused party shall be extended on a day-to-day basis for the time period equal to the
period of the excusable delay.
G10INTOR:
TTE;PROPERTIES,LID., a'Texas limited
partnership
Tay: PROPERTY COMPANY OF FORT
'NORTH, LLC,a Texas limited liability
companfy, its general partner
By:_____..
Name:
Title:, f►/rA1►ttq le✓
GRANTEE:
CITY OF PORT WORTH, a Texas home rule
municipal corporation
By:_. --
Fernand osta, A.ssi. City Manager
!approved as to form and legality
Assistant City Attorney
ATTEST:
City Secretary
Subsurface Easement Agreement page 7
ivtf IDocs 4750994 2 11077,12
Nvork stoppages not involving employees of either party that cannot reasonably be
overcome, fires, riots, rebellions, wars, acts of terrorism, accidents; explosions,
floods, storms, acts of God, and similar occurrences. The obligations and rights of the
excused party shall be extended on a clay-io-day basis for the time period equal to the
period of the excusable delay.
GRANTOR:
JJE PROPERTIES, 1 LID., a Texas limited
partilership
Rv: PROPERTY COMPAN ' F FORT
WORTH, LLC, a Te s limited liability
company, its gen p,_I
By:
—
N acne.
r
Title:
GRA.M'r,I,,:
CITE.'OF FORT WORTI1, a Texas home rule
inunicipal corporation
�m
13y:�� -
Fernando Costa, Asst. City Manager
Approved as to form and legality
1�
AsAsit City Attorney
ATTEST:
City Seer 3ry
Subsurface Fasement Agreement Page 7
4lHDocs 1750994 2 11077.12
STATE OF TEXAS §
COUNTY OF'1•ARR,&N'1' §
This instrument was acknowledged before me on the Z.0'—day of Yvn%/er-t& 2013, by
vu • as V4Pr,.a,A , of PROPERTY COMPANY
-113F FORT tb'OR'1'H, LL C, a Texas limited ability company, general partner of BE
PROPERTIES. LTD., a Texas limited paAnershil, on behalf of said limited liability company
and parttiership.
A MONICA HOOKS
Notary Public
a state of Texas Notary Pu 1c, State f 1 Yas
comm. Expires 04-07-2015
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was ackxt,owledged befor re on the day of , 2013, by
Fernando Costa, as Assistuit City N"'Tanager CITY OF FORT" WORTH, a Texas home ntle
municipal corporation, on behalf of said nicipal corporation.
Notary Public, State ofTexas
AI TER RECORDTNG RETURN TO:
Munsch Hardt Kopf&IIerr,P.C.
Attn: Ian M. Fairchild
500 N Akard St, Ste 3800
Dallas,TX 75201
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STATE OF TEXAS §
§
COUNTY OF TARRANT §
This instrument was acknowledged before me o c day of 2013, by
as i- of PROPERTY COMPANY
OF FORT WORTH, LLC, a 'Texas lini liability companv, general partner of JJE
PROPERTIES, LTD.., a Texas limited par6crship, on behalf of said limited liability company
and partnership.
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF TARRANT
This instrument was acknowledged before me on the —26 day ofl'vp'VM J/r, 2013, by
Fernando Costa, as Assistant City Manager o(' CITY OF FORT WORM, a "Texas home rule
municipal corporation, on behalf of said municipal corporation.
EVONIA DANIEIS
'_ Notary Public.51 T
0'.e of texos
� icy Commiss'on Expires Notary Public, State of exas
; •. c5,a' July 10, 2817
AFTER RECORDING RETURN TO:
Munsclh Hardt Kopf& Herr,P.C.
Atm: Ian M.Fairchild
500 N Akard St, Ste 3800
Dallas, TX 75'201
Subsurface Easement Agreement Page 8
N11{Docs 4750994 211077.12
Exhibit"A"
Description of Property
BEING Lot 1 and the East one-half of Lot 6, Block 3 Jennings South Addition, an unrecorded addition, in
the City of Fort Worth,Tarrant County,Texas and being a part of a tract described in the Deed to the
City of Fort Worth recorded in Volume 15162, Page 132 and Volume 15202, Page 210 of the Deed
Records of Tarrant County,Texas(DRTC)and being all of the tract described in the Deed to G. D. Lewis
recorded in Volume 11620, Page 752 DRTC,said tract being tied to the Texas Coordinate System, North
Central Zone NAD83, bearings are grid, distances are horizontal ground measurements and said tract
being more particularly described as follows:
BEGINNING at a found 3/4 inch iron pin for the northeast corner of the tract described herein and being
at the southwest intersection of West Vickery Boulevard and Lipscomb Street,from which a found `Y'
cut in concrete bears N1°40'37"E,7.91 ft.,said 'Y" being incorrectly described as the northeast corner of
the said Lewis Tract as referenced in Volume 15162, Page 132 DRTC;
THENCE S1°40'37"W,with the west right-of-way of Lipscomb Street, at 227.3 ft a found reference 'Y'cut
in the concrete dock, in all 234.30ft to a set 5/8 inch brazed iron pin(5/881P) being at the southeast
corner of the said Block 3 and being the northwest intersection of Lipscomb Street and Jarvis Street.
THENCE N88°19'23"W,with the north line of the said Jarvis Street, 100.00 ft to a set 5/813IP,
THENCE 1\11°40'37"E, with the line described in the Party Wall Agreement recorded in Volume 2252,
Page 290 DRTC, 230.55 ft to a point in the north wall of an existing building and being in the south line of
the said West Vickery Blvd.,from which a found 100d nail bears NO°28'23"W,0.80 ft;
THENCE N89 031'37"E,with the south line of the said West Vickery Blvd, and being the north line of the
said Lewis Deed recorded in Volume 11620, Page 752 DRTC, 100.07 ft to the place of beginning and
containing 23,241 square feet of land.
EXIHBIT "B"
SURVEY
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