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")
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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
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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
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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
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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
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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
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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.
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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
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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
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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:
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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:
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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
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j
Encroachment
QLocation
per o�•o�iv :a __ n -5`- 69 p 4 '2/ _E. � �.' a
0 7
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M�nho.G _io'S dr.4'r..wvr' I
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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
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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