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Item 4F - Executed Encroachment AgreementCITY OF SOUTHLAKE ENCROACHMENT LICENSE AGREEMENT THE STATE OF TEXAS § COUNTY OF TARRANT § THIS non-exclusive ENCROACHMENT LICENSE AGREEMENT ("License") is made between PEARSON - 1709, LTD., a Texas limited partnership ("Licensee"), and the CITY OF SOUTHLAKE, TEXAS, a Texas home -rule municipality ("Licensor" or "City"). WHEREAS, Licensor owns a public utility easement situated on or abutting LOT 13, BLOCK 3R, OF CIMMARRON ACRES, in the City of Southlake, Texas (the "Easement"); and WHEREAS, Licensee owns that certain tract of land directly adjacent to and abutting the Easement, with a physical address of 101 N. Pearson, in the City of Southlake, Tarrant County, Texas, which Licensee (as landlord) has leased for the operation of commercial business called "Tommy's Car Wash" situated on that land; and WHEREAS, Licensee desires to use a limited portion of the Easement, more particularly described and shown in the attached Exhibit A (the "Licensed Area"), for a paved private drive and car wash lane, concrete curb, and screening wall (collectively the "Improvements"); and WHEREAS, by entering into this License the parties agree that Licensor is exercising its governmental functions relating to water and sewer service in order to protect the City's infrastructure and other related appurtenances located in or related to the Easement in the interest of the general public, and Licensee is not providing a good or service to the Licensor that is subject to Texas Local Government Code Ch. 271; and NOW, THEREFORE, in consideration of the premises and recitals set forth above, which are hereby made a part of this License, and for the consideration and mutual promises and agreements set forth below, the Licensee and Licensor hereby agree as follows: License. Licensor grants to Licensee, its successors and assigns, a non-exclusive, revocable license to install and maintain the Improvements in the Licensed Area, in accordance with the design and plans described and shown in Exhibit A, to be used by Licensee for the purposes of this License, and for no other purpose. 2. Term. This License shall be for a term of twenty (20) years, commencing on 3 2024, and expiring on , 2044. 3. Compensation. Licensee shall pay to Licensor the total lump sum of 4. Use of Licensed Area. a. Licensee shall not install, add to, repair, or reconstruct the Improvements in a manner different than the design and plans described and shown in Exhibit A, without Licensor's prior written consent. b. Licensee shall maintain any landscaping within the Licensed Area and pay all applicable fees for water and electric service, if any, in connection with the Improvements installed under this License. c. Licensee shall not suffer or permit any mechanic's, supplier's, or materialmen's liens, claims, judgments or indebtedness of any kind to be filed against the Licensor or the Licensed Area, and shall promptly obtain the release of any such claims at Licensee's sole cost. d. Except in the event of an emergency, Licensee shall not perform any construction work in the Licensed Area (other than normal repairs and maintenance work) without first providing construction plans and securing permission of the Licensor, not to be unreasonably withheld. The Licensor shall be notified as soon as practicable regarding work performed under emergency conditions. e. Licensee shall maintain the Licensed Area in a clean and orderly condition substantially free of trash and debris, including the trimming of weeds and grass to the Licensor's reasonable satisfaction. f. Licensee shall not disturb any improvements of Licensor, if any, or interfere with the use, repair, maintenance, or replacement of such improvements. 5. Compliance with Applicable Laws. Licensee shall at all times comply with the City's Code of Ordinances, as amended. Licensee is prohibited from using the Licensed Area in any manner which violates any applicable Federal, State or local laws, regulations, rules, or orders, regardless of when they become or became effective, including without limitation, those relating to health, safety, noise, environmental protection, waste disposal, and water and air quality, and shall provide satisfactory evidence of compliance upon the request of the Licensor. INDEMNIFICATION. LICENSEE, ITS SUCCESSORS AND ASSIGNS (COLLECTIVELY THE "INDEMNIFYING PARTY"), SHALL RELEASE, INDEMNIFY, DEFEND, AND HOLD HARMLESS THE CITY, TOGETHER WITH THE CITY'S OFFICERS, AGENTS, COUNCILMEMBERS, EMPLOYEES, ATTORNEYS, AND REPRESENTATIVES (COLLECTIVELY, INCLUDING THE CITY, THE "CITY INDEMNIFIED PARTIES"), FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, DEMANDS, CAUSES OF Page 2 of 2 ACTION, CLAIMS, JUDGMENTS, SUITS, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) MADE BY ANY THIRD - PARTY, TO THE EXTENT ARISING FROM, RELATED TO, OR PURSUANT TO THIS LICENSE (COLLECTIVELY, "INDEMNIFIED CLAIMS"), REGARDLESS OF THE LEGAL THEORY ASSERTED BY ANY THIRD PARTIES AND REGARDLESS OF WHETHER THE DAMAGES OR CLAIMS OF THIRD PARTIES ARE KNOWN OR FULLY APPRECIATED AT THIS TIME BY LICENSEE OR THE CITY. THE INDEMNITIES IN THIS LICENSE ARE SPECIFICALLY INTENDED TO OPERATE AND BE APPLICABLE EVEN IF IT IS ALLEGED OR PROVED THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED IN WHOLE OR IN PART BY ANY ACT, ERROR, OMISSION, NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL CONDUCT, BREACH OF CONTRACT, BREACH OF WARRANTY, VIOLATION OF STATUTE, OR COMMON LAW, VIOLATIONS OF THE STATE OR FEDERAL CONSTITUTIONS, OR ANY OTHER CONDUCT WHATSOEVER OF THE CITY INDEMNIFIED PARTIES. LICENSEE SHALL GIVE TO THE CITY REASONABLE NOTICE OF ANY SUCH CLAIMS OR ACTIONS. LICENSEE SHALL USE LEGAL COUNSEL REASONABLY ACCEPTABLE TO THE CITY IN CARRYING OUT ITS OBLIGATIONS HEREUNDER. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLY TERMINATION OF THIS LICENSE. 7. Governmental Functions. The parties hereby acknowledge and agree that the City is entering into this License pursuant to its governmental function(s) and that nothing contained in the License shall be construed as constituting a waiver of the City's police power, which cannot be waived, or governmental immunity from suit or liability, which are expressly reserved to the extent allowed by law. To the extent a court of competent jurisdiction determines this License is subject to the provisions of Subchapter I of Chapter 271, TEXAS LOCAL GOVERNMENT CODE, as amended, the City's immunity from suit is waived only as set forth in Subchapter I of Chapter 271, TEXAS LOCAL GOVERNMENT CODE. Further, the parties agree that this License is made subject to all applicable provisions of the Texas Civil Practice and Remedies Code ("CPRC"), including, but not limited to, all defenses, limitations, and exceptions to the limited waiver of immunity from liability provided in CPRC Chapter 101 and Chapter 75. 8. No Warranties. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL CLAIMS FOR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED AREA OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Page 3 of 2 9. Termination and Restoration of Licensed Area. a. If Licensee fails to follow any requirements of this License, the Licensor will deliver written notice to Licensee. If ten (10) days have expired after delivery of such written notice of breach or default to Licensee, and the Licensee has not cured such breach or default, the Licensor may revoke this License and the License shall automatically terminate. b. Gift to Public Servant. Licensor may immediately terminate this License if Licensee offers, has offered, or agreed to confer any benefit upon a City employee or official that the City employee or official is prohibited by law from accepting. c. Either party may terminate this License, with or without cause, upon providing ninety (90) days' written notice to the other party. d. Within thirty (30) days after the expiration or termination of this License, Licensee shall, at Licensee's sole cost and expense, (i) remove the Improvements and any related appurtenances from the Licensed Area; (ii) grade and level the Licensed Area as directed by the Licensor; and (iii) establish grass in the Licensed Area to the Licensor's reasonable satisfaction. If Licensee should refuse, then the Licensor may remove the improvements and restore the Licensed Area to the Licensor's reasonable satisfaction, at Licensee's sole cost and expense. 10. Notice. All notices called for or required by this License shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid or by hand delivery: If to Licensee: Pearson — 1709, Ltd. 7995 LBJ Freeway, Suite 250 Dallas, Texas 75251 With a copy to: CR Wash Partners Southlake, LLC 4609 33'Avenue, Suite 400 Fargo, ND 58104 If to Licensor: The City of Southlake Attn: City Manager 1400 Main Street, Southlake, TX 76092 11. Applicable Law and Venue. This License is governed by and is to be construed in accordance with the laws of the state of Texas without reference to the conflicts of laws provisions of the state of Texas. Exclusive venue for any action under this License shall be the District Court of Tarrant County, Texas. This License is performable in Tarrant County, Texas. Page 4 of 2 12. No Waiver. The failure of either parry to insist upon strict performance of any of the terms of this License will not be deemed a waiver of any rights or remedies that party may have hereunder, at law or in equity, and will not be deemed a waiver of any conditions. No waiver by any party of any default under this License will be effective or binding on the party unless made in writing by the party and no waiver will be implied from any omission by a party to take action in respect to any default. No express written waiver of any default affects any other default. 13. Alterations. Except as set forth in this License, Licensee may not make any alterations to the Licensed Area or permanently affix anything to the Licensed Area without Licensor's prior written consent. 14. Removal. In the event Licensor determines that it is necessary to remove the Improvements_ and related appurtenances to maintain, repair, or construct alterations to the Easement, Licensee shall, upon delivery of thirty (30) days' prior written notice to Licensee, immediately remove or cause to be removed the Improvements and related appurtenances, at Licensee's sole cost and expense. In the event Licensee fails to remove the Improvements and related appurtenances, the Licensor shall have the right to remove the same at the expense of Licensee without any compensation or liability whatsoever for damages to the Licensee. After completion of such maintenance, repair, or construction, Licensee shall have the right to reinstall the Improvements and related appurtenances and restore the Licensed Area as provided in this License. In the event of an emergency, Licensor may immediately remove the Improvements and related appurtenances, all without compensation or liability for damages as provided herein, only giving such notice to Licensee as may be reasonable under the circumstances, if at all. 15. Reconstruction. If any part of Licensee's improvements are destroyed by any casualty, or act of God, or public enemy, Licensee shall have the right to reconstruct and rebuild the improvements in the Licensed Area, subject to compliance with the terms and conditions of this License. 16. No Leasehold Interest. Licensee acknowledges that this License is not a lease, that there are no leased premises, and that this License does not create a leasehold interest in any part of the Licensed Area. In the event that Licensee shall hold over and continue its activities under this License after the expiration or termination of this License, such holding over shall not be construed to operate as a renewal or extension of this License, or a tenancy at sufferance. 17. Severability. The terms and provisions of this License shall be deemed to be severable and if the validity of any section, subsection, sentence, clause or phrase of this License should be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of any other section, subsection, sentence, clause, or phrase of this License. If any material term or provision of this License is so declared invalid, the parties shall promptly begin negotiations for a replacement. Page 5 of 2 18. Deed Records. This License shall not be filed or recorded in the official public deed records of Tarrant County, Texas, but shall be kept on file in the Office of the City Secretary of the City of Southlake. 19. Entire License. This License constitutes the entire agreement between the parties and supersedes any prior understanding or written or oral agreements or representations between the parties, and can be modified only by written instrument subscribed to by both parties. 20. Legal Construction. The judicial doctrine that provides that documents or exculpatory provisions are to be construed against the drafter or provider of such documents or provisions does not apply to this License, as each party has had a reasonable opportunity to obtain and consult with their own legal counsel regarding this License. The approval and acceptance of this License does not waive any rights, immunities, powers, or privileges available to the City under applicable federal, state, and local laws. 21. Texas Public Information Act. All information, documents, and communications relating to this License shall be subject to the Texas Public Information Act ("Act") and any opinion of the Texas Attorney General or a ruling of court of competent jurisdiction relating to the Act. 22. Assignment. Notwithstanding any other provision to the contrary in this License, Licensee shall not sell, assign, transfer, or convey this License, in whole or in part, without the prior written consent of Licensor. 23. Successors and Assigns. This License shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. 24. Counterparts. This License may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts will be construed together and will constitute one and the same instrument. 25. Effective Date. This License shall take effect immediately from and after its execution on the date signed by the last party below. [SIGNATURE PAGE TO FOLLOW] Page 6 of 2 EXECUTED this day of 12024. LICENSOR: THE CITY OF SOUTHLAKE, TEXAS Alison Ortowski, City Manager Attest: Amy Shelley, City Secretary Approved as to form: Cara L. White, City Attorney Page 7 of 2 LICENSEE: PEARSON - 1709, LTD., a Texas limited partnership By: Hopkins Retail, Inc., a Texas corporation, its general partner By: Allf I Name: Mkt W/ Title: THE STATE OF TEXAS § COUNTY OF!�qA QS § This instrument was acknowledged before me on-L-,dftA�&. k, 2024, by t V6 theY�� of Hopkins Retail, Inc., the general partner of Pearson - ]709, Ltd., a Texas limited partnership, on behalf of said corporation and limited partnership. "n Vt— SUZANNE DUSEK y1 ��pY P�jA�l Notary Public, State of Texas Comm. Expires 06-17-2025 :�•..,,..� �. ry lic in nd for the State of Texas Notary ID 133162511 '• �6F��` %�•r,,,,��� Printed e:6 UZ-OL n n(,-, 1X S [Seal] My Commission Expires: D U 1-1 -ID Z5 Page 8 of 2 EXHIBIT A LICENSED AREA AND IMPROVEMENT PLANS NS1TY WH HV[LS Cutj LZLI - v JL CC .....••�_: ,. CAR WASH v Uff vw' C8.1 kmurr ww c[•Ls :- - _0• - Page 9 of 2 4900-6205-6195v.2 6814-82 12/4/2024