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HomeMy WebLinkAboutContract 21373 EASEMENT ENCROACHMENT AGREEMENT l 4 SE �R " � STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT WHEREAS, Wayne Steed (hereinafter referred to as "Owner" ) , represents that he is the owner of the real property legally described as Lots 13R and 14R, Block 104, North Fort Worth Addi- tion, an addition to the City of Fort Worth, Tarrant County, Texas, as recorded in Volume 63, Page 149, of the Deed Records of Tarrant County ( "Property" ) ; and WHEREAS, the City of Fort Worth has an existing storm drain easement (the "Easement" ) in the Property, which contains a 78 inch concrete arch storm drain pipe, as shown on the map attached to this Agreement as Exhibit "A" and incorporated herein; and WHEREAS, Owner has constructed single story residential struc- tures (the "Encroachment" ) , extending in, on, over or along the Easement; NOW, THEREFORE, WITNESSETH: That Owner hereby covenants and agrees as follows: 1. Owner agrees that the Encroachment will comply with all standards, policies and procedures of the City of Fort Worth governing design and construction. Any subsequent repair, replace- ment, expansion or alteration of the Encroachment must also be submitted to the Director of Transportation and Public works of the City of Fort Worth (the "Director" ) with the plans and specifica- tions therefor, and the Director must indicate in writing that he ON MY Sjf""GREIARY 1 . � u has no objective thereto, prior to the commencement of such work. 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 accordance with this Agreement for any responsibility or liability in any way related to the plans and specifications, 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 of Fort Worth standards. 3 . In the event that the Encroachment is destroyed or damaged by fire, flood, or any other cause, its replacement or reconstruction shall be the sole responsibility of Owner, and all costs for said replacement or reconstruction shall be paid by Owner and it shall be reconstructed according to plans and specifications approved by City. 4 . Owner covenants, agrees and acknowledges that this Agreement is solely for the purpose of permitting owner to construct, maintain and locate the Encroachment over or within the described Easement and is not a conveyance of any right, title or interest in or to the Easement. 5 . Owner and City mutually covenant and agree that City, acting by and through its duly authorized agents, officers, servants or employees, shall have at any and all times the full and unrestricted right to enter Owner's property for the purpose of examining and inspecting the Encroachment and its appurtenances to determine the compliance by Owner with its obligations hereunder. 2 6. Neither this Agreement nor any part thereof shall be assigned by either party without the prior written consent of the other party, and such assignment without such prior written consent shall constitute a breach of this Agreement and shall be grounds for termination of same. 7 . Owner shall operate hereunder as an independent contractor and not as an officer, agent, servant or employee of City. Owner shall have exclusive control of and the exclusive right to control the details of the work and services performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, representatives and independent contractors. The doctrine of respondent 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. 8 . Owner agrees to deposit with the City of Fort Worth when this Agreement is executed a sufficient sum of money to be used to pay necessary fees to record this Agreement in its entirety in the Deed Records of Tarrant County, Texas. After being so recorded, the original hereof shall be returned to the City Secretary of the City of Fort Worth, Texas. 9. Should Owner default in the performance of any of the terms, conditions or covenants contained herein, the City shall give written notice of the existence of such default, specifying the nature thereof, to the Owner in the manner provided in this Agreement. The Owner shall have a period of sixty (60) days after 3 written notice thereof is given to remedy such default; provided, however, that in the event such default is not reasonably suscep- tible 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 any breach which, in the reasonable opinion of the Director, constitutes a threat to public health and safety. 10. Owner covenants, agrees and acknowledges that City may terminate this Agreement and the privileges granted herein if : (a) A continuing threat to public health and safety caused by the continued existence and/or operation of the Encroachment requires the termination of this Agreement and removal of the Encroachment, in the reasonable opin- ion of the Director, provided that the Director shall give written notice of such termination to Owner in the manner provided by this Agreement; or (b) Nothing herein shall be construed as limiting the right of the City to take any other action available at law or in equity to enforce the terms of this Agreement or to seek damages for its breach. 11. In any action brought by City for the enforcement of the obligations of Owner, City shall be entitled to recover its court costs, expenses and reasonable attorney's fees from Owner. 4 12. 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. 13. Any notices required hereunder shall be effective as of the date they are deposited in the United States mail, certified, return receipt requested. The notices shall be effective when addressed as follows, provided the party mailing the notice has not received written notification of a change in same: TO OWNER: Wayne Steed 4417 Summercrest Court Fort Worth, Texas 76109 TO CITY: City of Fort Worth Attn: Transportation/Public Works Director 1000 Throckmorton Fort Worth, Texas 76102 14 . 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. 15 . The covenants and agreements set forth herein shall con- stitute a servitude upon and shall run with the land and be binding upon Owner and successors in interest to the Property. 16. 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 contractors. This provision shall not alter in any way the requirements of Paragraph 10 herein. The term "Owner" shall include anyone claiming ownership of the Property, in possession thereof, the record title holder and/or the legal title holder. 5 17 . The term "City" as used herein shall include the agents, representatives, servants, employees and independent contractors of the City of Fort Worth. 18. Should any portion of this Agreement be determined to be illegal, unconstitutional or otherwise unenforceable, the remaining portions of the Agreement shall continue in force and remain effec- tive and shall be construed consistently with the originally intended purposes of the Agreement. 19 . This Agreement may be amended by written amendment executed by both parties hereto. 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 herein. 6 EXECUTED this day of .w. � , 19 , ATTEST: CITY OF FORT WORTH B . , � ty Secre ar Name •�•' � ..,�•" � � ".�`.m Title: APPROVED AS TO FORM AND LEGALITY: • i Assistant City orney OWNER: e, p� Wayn Steed Date 7 STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, a Notary Public in and for .the ,Sta a of Texas, on this day personally appeared known to me to be the person whose name is subscribed t.n the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he/she executed the same as the act of the said City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GI,7 UN ER M, Y HAND �-SEAL OF OFFICE this day of v 19 . ................ (V9 6-- Public(, i And for the State of a as of, p6b Ry?.(3 STATE OF COUNTY OF BEFORE ME, the un4ersigned authority, a Notary Public in and for the State of t `2 — Fon this day personally appeared 6Z. _, known to me to be the person whose name is sdbscribed to the foregoing instrument, and acknowl- edged to me that he/she executed the same for the purposes and con- sideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE thisa day of 19 JP�N_ NE SCOTT Notary PubNe 3TATE. OF, TEXAS Not ...y Public i and for OF my Convin, Exp.06/28/98 the State of 8