Vermilion Addition - Encroachment Agreement
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VERMILION ADDITioN 'PI
ENCROACHMENT AGREE~ ','.:' ~
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THIS AGREEMENT is made and entered into by and between the City of Southlake, a home
rule municipal corporation in Tarrant and Denton Counties, Texas, acting herein by and through
its duly authorized City Manager, Billy Campbell, ] 400 Main Street, Suite 460, Southlake, Texas
76092, hereinafter referred to as the "City," and Wilbow-Southlake Development Corporation
hereinafter referred to as "Grantee," 9330 LBJ Freeway, Suite 745, LB 68, Dallas, Texas 75243.
WITNESSETH:
I,
For and in consideration of Grantee's true and faithful perfonnance of the covenants
herein contained, City hereby grants to Grantee pennission to encroach upon, use and occupy
portions of the public right-of-way solely for the purpose of erecting and maintaining two stone
columns (the "Encroachment"), described in the attached Exhibit "A", for descriptive purposes
only to be located in street parkway (Encroachment Area). If such columns and wrought iron
fences are damaged and must be reconstructed, the City must first approve the plans for the
reconstruction.
2.
Grantee shall be responsible for all maintenance and operation in connection with the
encroachment, use, and occupancy. Grantee shall maintain the Encroachment in strict
compliance with the Charter, Ordinances and Codes of City and in accordance with the
directions of the Director of Public Works of City, or his duly authorized representative.
3.
The parties agree that there shall be no further encroachments in, under, on or above the
surface area of the streets and sidewalks involved.
4.
Grantee, at no expense to City, shall make proper provision for the relocation and/or
installation of any existing or future u6lities affected by such encroachment, use and occupancy,
Page 1 of 12
including the securing of approval and consent from the utility companies and the appropriate
agencies of the State and its poli6cal subdivisions. In the event any installation, reinstallation,
relocation or repair of any existing or future utility or other public improvements owned or
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 addi60nal cost as detennined by the Director of Public
Works, or his duly authorized representative.
5.
City may enter and utilize the Encroachment Area at any time for the purpose of
instal1ing or maintaining improvements necessary for the health, safety and welfare of the public
or for any other public purpose. Grantee agrees that City shall bear no responsibility or liability
for damage or disruption of proposed improvements installed by or on behalf of Grantee, its
predecessors or its successors, but City will make reasonable efforts to minimize such damage.
6,
The duration of this Agreement shal1 be ninety-nine (99) years, but shall be subject to
tennination as provided elsewhere herein. It is agreed that the rights, duties, obligations and
liabilities herein set forth shall be transferred to the owners of Lots] and] 6 of Vennilion
Addition when sold by Grantee to another person or entity.
7,
Upon the termination of this Agreement for any reason, Grantee shall, at the option of
City and at no expense to City, remove all of Grantee's improvements from the Encroachment
Area,
8.
The parties hereto agree that the City streets, sidewalks and public rights- of-way,
including the portions of such streets, sidewalks, and public rights -of-way to be used and
encroached upon as described herein, are held by City as trustee for the public; that City
exercises such powers over the streets as have been delegated to it by the Constitution of the
Page 2 of 12
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. While there is no
cont1ict now, and barring any future conflict between uses of the Encroachment Area by the City
and the Grantee, Grantee's conhnued use of such area will not be terminated unreasonably, it is
nevertheless agreed that if the City Council should at any time during the term hereof
determines, in its sole discretion, to construct public streets within the public right-of-way or to
use or cause or permit the said portions of the streets and sidewalks to be used for any other
public purpose, including but not being limited to underground, surface or overhead
communication, drainage, water Jines, sanitary sewerage, transmission of natural gas or
electricity, or any other public purpose whether presently contemplated or not, Which is not
compatible with Grantee's continued use, then to the extent of the conflict, this Agreement shall
be canceled and terminated upon a majority vote of the City's city council.
9,
In the event this Agreement is canceled and terminated as provided in Paragraph 8, City
will give Grantee 90 day's written nohce of City's intent to utilize the Encroachment Area.
Grantee shaH, at Grantee's sole expense, remove the Encroachment as required by this
Agreement within such time period. City shall not be liable to Grantee for the costs of any such
required removal, nor shall City be under any obligation to provide Grantee with an alternate
location for the Encroachment. No construction by City which interferes with Grantee's use of
the Encroachment Area shall occur until such time period has expired unless approved in wrihng
by Grantee,
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
Page 3 of 12
an interest, and Grantee agrees that it will obtain all necessary permission before occupying such
property.
II.
Grantee agrees to comply fully with al1 appJicable federal, state and local laws, statutes,
ordinances, codes or regulations in connection with the construction, operation and maintenance
of said encroachments and uses. Approval of this Agreement does not excuse Grantee from the
requirement to obtain a building permit or comply with other City ordinances.
12.
Grantee ab,Tfees to pay promptly when due all fees, taxes or rentals provided for by this
Agreement or by any federal, state or local statute, law or regulation.
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; that Grantee shall have exclusive control of and the exclusive right to control the details
of its operations, and al1 persons performing same, and shall be solely responsible for the acts
and omissions of its otDcers, agents, servants, employees, contractors, subcontractors, licensees
and invitees; that 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.
GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS,
14.
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 OF CHARACTER. WHETHER REAL
OR ASSERTED, (INCLUDING,
WITHOUT LIMIT A TIO:"l, REASONABLE FEES AND EXPENSES OF ATTORNEYS,
Page 4 of 12
EXPERT WITNESSES AND OTHER CONSULTANTS), ARISING OUT OF OR IN
CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION,
MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF SAID
ENCROACHMENT A:"lD USES GRANTED HEREUNDER, WHETHER OR NOT
CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS,
AGENTS,
SERV ANTS,
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,
SERV ANTS,
EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR
TRESP ASSERS.
15.
Grantee agrees to maintain public liability insurance covering all public risks related to
the proposed use and occupancy of public property as located and described in the portion ofthe
Encroachment Area being used by Grantee for the Encroachment. The amounts of such
insurance shall be not less than the fol1owing:
Property damage, per occurrence $100,000
Personal injury or death, per occurrence $1,000,000
with the understanding of and agreement by Grantee that such insurance amounts shal1 be
revised upward at City's option (but not in excess of the limits then being required by the City of
other independent contractors doing business with the City) and that Grantee covenants and
agrees to so revise such amounts within thirty (30) days following notice to Grantee of such
Page 5 of 12
requirement. Such insurance poJicy shall provide that it cannot be canceled or amended without
at least thirty (30) days prior written notice to City. The liability insurance policy shall name
City. its employees and officers as additional insureds.
Grantee shall provide to City a copy of an endorsement to Grantee's liability
policy wherein either City, its officers and employees, are named therein as an additional insured
or blanket coverage is provided for al1 persons or organizations required to be "additional
insureds" by written contract.
The amount of all required insurance policies is not deemed to be a limitation on Grantee's
agreement to indemnity and hold harmless City, and in the event Grantee or City become liable
in an amount in excess of the amount or amounts of the policies, then Grantee must save City
harmless from the whole liability.
16.
Grantee agrees to deposit with City when this Agreement is executed a sufficient sum of
money to be used to pay necessary fees to record this Encroachment Agreement in its entirety in
the deed records. After being so recorded, the original hereof shall be returned to the City
Secretary.
17.
Grantee covenants and agrees to maintain the Encroachment described in Exhibit "A"
attached hereto in a neat, safe and attractive condition at all times.
18.
In addition to the other grounds for termination provided for in this Agreement, this
Agreement may be terminated by the City should Grantee breach any terms or conditions set
forth in this Agreement and not cure same within 30 days after written notice thereof.
19.
Grantee agrees that should any achon, at law or in equity, arise out of the terms of this
Agreement or on account of Grantee's maintaining or using the Encroachment Area described
herein, venue for said action shaH be in Tarrant County, Texas. In any action brought by City for
Page 6 of 12
the enforcement of the obligations of Grantee, City shall be entitled to recover interest and
reasonable attorneys fees.
20.
All nohces, demands, requests or repJies provided for or permitted by this Agreement
shal1 be in writing to the addresses stated in the Preamble hereof and may be delivered by anyone
of the following methods: (1) by personal delivery; (2) by deposit with the United States Postal
Service as certified or registered mail, return receipt requested, postage prepaid to the addresses
stated below; or (3) by deposit with an overnight express delivery service.
Notice deposited with the United States Postal Service in the manner described above shaH be
deemed effective one (1) business day after deposit with the U. S. Postal Service, or notice by
overnight express delivery service shall be deemed effective one (1) business day after
transmission to the overnight express carrier.
21,
This Agreement and the exhibits incorporated and attached constitute the entire
agreement between the City and Grantee for the uses granted. All other agreements, promises
and representations with respect thereto, unless contained in this Agreement, are expressly
revoked, as it is the intention of
the parties to provide for a complete understanding, within the provisions of this document, and
the exhibits incorporated and attached hereto, of the terms, conditions, promises, and covenants
relating to Grantee's use of the Encroachment Area. The unenforceability, invalidity, or illegality
of any provision of this Agreement shal1 not render the other provisions unenforceable, invalid,
or illegal.
22.
No waiver of any covenant or condition or of the breach of any covenant or condition of
this Agreement shaH be taken to conshtute a waiver of any subsequent breach of the covenant or
condihon nor to justity or authorize the nonobservance on any other occasion of the same or any
Page 7 of 12
other covenant or condition hereof. Any waiver or indulgence of Grantee's default will not be
considered an estoppel against City. It is expressly understood that if at any time Grantee is in
default in any of its conditions or covenants hereunder, the failure on the part of City to promptly
avail itself of said rights and remedies which City may have, will not be considered a waiver on
the part of City, but City may at any time avail itself of said rights or remedies or elect to
terminate this Agreement on account of said default.
23.
Grantee and City agree that this Agreement shall not be construed against either party, it
being understood that both parties contributed to the preparation of this Agreement.
EXECUTED this
2rd
day of
&p!J;m hft)
2003.
CITY OF SOUTH LAKE, GRANTOR
WILBOW -SOUTHLAKE
DEVELOPMENT CORPORATION
r sident
Return to:
Ms. Lori Farwell, City Secretary
City of Southlake
1400 Main Street, Suite 270
Southlake, Texas 76092
Phone (817) 481-1519
Page 8 of 12
STATE OF TEXAS
§
~
COUNTY OF TARRANT
BEFORE ME, on this day persona1ly appeared Billy Campbell known to me (or
proved to me on the oath of or
through (description of identity card or other document) to be
the person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that he is the duly authorized City Manager of the City of Southlake,
and that he executed same on behalf of said corporation for the purposes and
consideration therein expressed and in the capacity therein stated.
wJ
<:,., GIVEN UNDER MY HAND AND SEAL OF OFFICE, !his !he 1-
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day of
Notary Public in and for the State of Texas
=--D~' fJ.. \V-- S t'\A I .~
Type or Print Notary's Name
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My Commission Expires:
ST ATE OF TEXAS
§
§
§
COUNTY OF TARRANT
BEFORE ME, on this day persona1ly appeared C\u.> E. Fihjô\J
known to me (or proved to me on the oath of - or through
~---- (description of identity card or other document) to be the
person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that he/she is the duly authorized of the Vermi1ion Property
Owner's Association and that he/she executed same on behalf of said corporation for the
purposes and consideration therein expressed and in the ca acity therein stated.
GIVEN UNDER MY HAND AND SEAL F 0 ICE, this the ¡;¡ (g -I! day of
n Avjv~t.__--, 2003.
Notary Pub]' c
or the State of Texas
[SEAL]
Gftt W G-ìtchð
Type or Print otary's Name
~:f"~ Greg W Gltcho
?::.J\...:. \. My Commission ExpICe5
~\~,"
~","Ø August 03, 2005
¡'t;Of- .
03 - ¡\,~ 05
My Commissio ExpIres:
Page 9 of 12
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EXHIBIT ""A"
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0203373147
CITY OF SOUTHLAKE
::"400 MAIN ST #270
SOUTHLAKE TX 76092
-W A R N lNG-THIS IS PART OF THE OFFICIAL RECORD--D 0
NOT
DES T ROY
= N 0 E X E 0 -- TAR RAN T C 0 U N T Y T E X A S
S U Z ANN E HEN D E R SON -- COUNTY CLERK
0 F F I C I A L R E C E I P T
T 0:
CITY OF SOUTHLAKE
RECEIPT NO
;~O4006178
REGISTER
DR2A
RECD-BY
LF
PRINTED DATE
10/03/2003
TIME
16:05
1
INSTRUMENT FEECO
0203373147 wD
INDEXED
20031003
TIME
16:0:)
RECVD
CG
TOTAL:
DOCUMENTS: 01
FEES:
36.00
L
B Y:
ANY PROVISION WHICH RESTRICTS THE SALE RENTAL OR USE
OF THE DESCRIBED REAL PROPERTY BECI,USE OF COLOR OR RACE
1:3 INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.