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Ginger Creek (HOA) - Encroachment Agreement ,')"\ ,./ / ENCROACHMENT AGREEMENT OFFlCW. RECORD 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, 1400 Main Street, Suite 460, Southlake, Texas 76092, hereinafter referred to as the "City," and Ginger Creek Property Owners' Association hereinafter referred to as "Grantee," WIT N E SSE T H: 1. For and in consideration of Grantee's true and faithful performance of the covenants herein contained, City hereby grants to Grantee permission to encroach upon, use and occupy portions of the public right-of-way solely for the purpose of erecting and maintaining an aesthetic perimeterwall ("Wall"), described in the attached and incorporated Exhibit "A" for descriptive purposes only, to be located within the area described in the attached and incorporated Exhibit "B" ("Encroachment Area"). At such time as City installs brick on the Wall, City agrees to match the existing brick as closely as reasonably possible. 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 utilities affected by such encroachment, use and occupancy, including the securing of approval and consent from the utility companies and the appropriate agencies of the State and its political 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 additional cost as determined 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 installing or maintaining improvements necessary for the health, safety and welfare of the public or for any other public purpose. In this regard, 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 shall be ninety nine (99) years, but shall be subject to termination as provided elsewhere herein. It is understood and agreed that the rights, duties, obligations and liabilities herein set forth shall be personal to Grantee and shall automatically terminate upon the sale, transference, assignment, or other conveyance to any person or entity not a party to this Agreement. 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 W:ISouthlake\AgreemenlsIEncrchGingrC rk.1-07 -02wpd. wpd Page 2 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 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 conflict now, and barring any future conflict between uses of the Encroachment Area by the City and the Grantee, Grantee's continued 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 lines, 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 council. 9. In the event this Agreement is canceled and terminated as provided in Paragraph 8, City will give Grantee 90 days written notice of City's intent to utilize the Encroachment Area. Grantee shall, at Grantee's sole expense, remove the Wall and any improvements thereto 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 Wall. 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 writing by Grantee. 10. Grantee understands and agrees that the granting of any encroachment W:\South lakelAgreements\EncrchGingrCrk.1-07 -02wpd. wpd Page 3 hereunder is not meant to convey to Grantee any right to use or occupy property in which a third party may have an interest, and Grantee agrees that it will obtain all necessary permission before occupying such property. 11. Grantee agrees to comply fully with all applicable federal, state and local laws, statutes, ordinances, codes or regulations in connection with the construction, operation and maintenance of said encroachments and uses. 12. Grantee agrees 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 all persons performing same, and shall be solely responsible for the acts and omissions of its officers, 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. 14. GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, 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 LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT W \Southlake\Agreements\E ncrchGingrCrk 1-07 -02wpd .wpd Page 4 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 AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES OF 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, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. 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 of the Encroachment Area being used by Grantee for the wall. The amounts of such insurance shall be not less than the following: 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 shall 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 requirement. Such insurance policy shall provide that it cannot be W:\South lake\Agreements\EncrchGing rCrk.1-07 -02wpd. wpd Page 5 canceled or amended without at least thirty (30) days prior written notice to City. The liability insurance policy shall name City as an additional insured. Grantee shall provide to City a copy of an endorsement to Grantee's liability policy wherein either City is named therein as an additional insured or blanket coverage is provided for all 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 indemnify 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 Wall encroachment described in Exhibit "A" attached hereto in a neat, safe and good condition at all times. 18. In addition to the other grounds fortermination 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 action, 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 shall be in Tarrant County, Texas. In any action brought by City for the enforcement of the obligations of Grantee, City shall be W\SouthlakelAgreements\EncrchGing rCrk.1-07 -02wpd .wpd Page 6 entitled to recover interest and reasonable attorneys fees. 20. All notices, demands, requests or replies provided for or permitted by this Agreement shall be in writing to the address 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; (3) by prepaid telegram, or (4) by deposit with an overnight express delivery service. Notice deposited with the United States Postal Service in the manner described above shall be deemed effective one (1) business day after deposit with the U. S. Postal Service. Notice by telegram or overnight express delivery service shall be deemed effective one (1) business day after transmission to the telegraph company or 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 shall 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 shall be taken to constitute a waiver of any subsequent breach of the covenant or condition nor to justify or authorize the nonobservance on any other occasion of the same or any other covenant or condition hereof. Any waiver or indulgence of W ISo uth lakelAg reements IE ncrch G ingrCrk. 1-07 -02wpd. wpd Page 7 Grantee's default will not be considered an estopple 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 j Is+- day of /F/X--<-,{. c7 ' 2002. '/' CITYOF SOUTHLAKE, GRANTOR GINGER CREEK PROPERTY OWNERS' ASSOCIATION, GRANTEE By: W\Southlake\Agreements\EncrchGingrC rk.1-07 -02wpd. wpd By: Title: 11"- ;( ~.. --- '../'-U)~~iL~ Page 8 Return to: Ms. Kim Bush Acting City Secretary City of Southlake 1400 Main Street Suite 270 Southlake, Texas 76092 Phone (817) 481-1519 STATE OF TEXAS ~ ~ COUNTY OF TARRANT ~ BEFORE ME, on this day personally 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 South lake, and that he executed same on behalf of said corporation for the purposes and consideration therein expressed and in the capacity therein stated. .{ c;lVEN UNDER MY HAND AND SEAL OF OFFICE, this the / Y day of '--d-f t- , 2002. . ?77/b;l <.JU [SEAL] Public in and for the State of Texas Type or Print Notary's Name My Commission Expires: W\Southlake\Ag reements\EncrchGingrCrk. 1-07 -02wpd. wpd Page 9 STATE OF TEXAS ~ ~ COUNTY OF TARRANT ~ BEFORE ME, on this day personally appearedt\)~ L-C.o\o~ known to me (or proved to me on the oath of or through \~'f\U">. u.l.QJ\~ (description of identity card or other document) to be the person ana officer whose name is subscribed to the foregoing instrument and acknowledged to me that he/s~is the duly authorized of the Ginger Creek Property Owners' Association and that he/she executed same on behalf of said corporation for the purposes and consideration therein expressed and in the capacity therein stated. _~ GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the '.$\1: ~,.'O...)i:v\ , 2002. \ day of ~~~ [SEAL] Notary Public in and for the State of Texas ~------- I :<~~~ ";~.'...""', LANA R~AiJAA1ES~1 : 0'. < .... ( : ~*.,c.: #01237356-7 I I ~:. .' .. · E Notary Public ( I .....~.. "ll STATE OFTEXAS l " 0" ", C '. '..,,,....... ommlSSlOn Expires 06I20I05 ) -----------~ l ()Nl"~r\Q' AM(Y\.J!5 Type or Print Notary's Name My Commission Expires: ~/dD/ Dr W\Southlake\Agreements\E ncrchGingrCrk .1-07 -02wpd .wpd Page 10 EXHIBIT A & B ~ ct ~ () D ,:, G01 ROW Scale: I !:-20/ BRICK HEADWALL TO BE MAINTAINED BY THE GINGER COURT HOMEOWNER'S ASSOCIATION ..... ENCROACHMENT AREA t--. ~ ~ ~ :> Q ct ltJ ~ <= -- \) ~ t'::. .......... ~ ~ t . GINGER COURT CULVERT . . GENERAL LAYOUT ,-" ,.~,,- .~."'--,..~---,.~,.-._~"..---..---..'....._-' ~,._,-,,,.,.,,,,._~.._,_._,._--_. "",~-,_._-_. APR - 5 2002 0202060706 CITY OF SOUTHLAKE 667 N CARROLL AVE SOUTHLAKE, TX 76092 -w A R N I N G-THIS IS PART OF THE OFFICIl';.L RECORD--D 0 NOT DES T ROY I N D E XED -- 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 OFF I C I A L R E C E I P T T 0: CITY OF SOUTHLAKE RECEIPT NO 202179074 REGISTER DR91 RECD-BY CAP PRINTED DATE TIME 03/05/2002 08:50 1 INSTRUMENT FEECD D202060706 WO INDEXED TIME 20020305 08:50 CG TOT A L DOCUMENTS: 01 FEE S: 29.00 B Y: ANY PROVISION ICH RESTRICTS THE SALE RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.