Southlake Town Square - Encorachment Agreement
ORIGINAL
ENCROACHMENT AGREEMENT OFFICIAL 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, hereinafter
referred to as the "the City," acting herein by and through James C. Blagg., its duly
authorized Assistant City Manager, and SLTS Land, LP, a Texas Limited Partnership,
hereinafter referred to as "Grantor," acting herein by and through its duly authorized
agent as referenced below.
TERMS AND PROVISIONS
1. For and in consideration of the City's true and faithful performance of the
covenants herein contained, Grantor hereby grants to the City permission to encroach
upon, use and occupy portions of Grantor's property located as depicted on the survey
or drawing attached hereto and incorporated herein as Exhibit A, which Exhibit A is
incorporated herein by reference, such area hereinafter referred to as "the
"Encroachment Area," for the purpose of installing and maintaining certain specific
public improvements, specifically, a public sidewalk connecting McPherson Park and
Division Street. This consent of the Grantor shall be a covenant running with the land,
and shall inure to the benefit of and be binding on Grantor's heirs, successors and
assigns.
2. The City shall maintain the public improvements in the Encroachment
Area in good condition throughout the term of this Agreement in compliance with the
requirements of this Agreement and to use reasonable care when performing work in
the Encroachment Area.
3. The City shall use reasonable efforts to avoid damage or disruption of any
improvements installed by Grantor or its successors on the property adjacent to the
Encroachment Area, and the City, at no expense to Grantor, shall make proper
provision for the relocation of any existing utilities, and any necessary provisions for the
installation of any future utilities by the City in the Encroachment Area, and/or the use
and occupancy permitted herein, including the securing of approval and consent from
the utility companies and the appropriate agencies of the State, County or other
governmental entities and/or political subdivisions.
4. During the term of this Agreement, the City may enter and utilize the
Encroachment Area at any time for the purpose of installing or maintaining the specific
improvements described herein to preserve the health, safety, welfare of the public and
the use of the improvements by the public.
5. The initial term of this agreement shall be Five (5) years, commencing on
the date this agreement is fully executed, but may be terminated by written agreement
of the parties at any time prior thereto. If the City acquires a permanent right of way or
other title to the full Encroachment Area which would permit the City's improvements
described herein, then this Agreement shall be considered terminated automatically,
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and the City's right of use shall thereafter be pursuant to such permanent right of way or
other title.
6. In the event this Agreement terminates as provided herein, the City shall
remove the improvements in the Encroachment Area permitted by this Agreement
within sixty (60) days, or diligently seek to acquire title to or the right to utilize to the
Encroachment Area as permitted by law. Grantor shall avoid interfering with the City's
use of the Encroachment Areas until such time period has expired unless approved by
City. If the City elects to remove the improvements as provided herein, the City shall
restore the Encroachment Area to as close as reasonably possible to the condition it
was prior to such entry.
7. The granting of permission for any encroachment hereunder shall not
convey to the City any right to use or occupy property other than or in excess of the
contemplated encroachment purposes.
8. The City shall comply with all applicable federal, state and local laws,
statutes, ordinances, codes or regulations in connection with the construction, operation
and maintenance of any improvements located in the Encroachment Area.
9. The City 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 Grantor; that the City 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 Grantor and City, its officers, agents,
servants, employees, contractors and subcontractors, and nothing herein shall be
construed as creating a partnership or joint enterprise between Grantor and City. City
further agrees to require all contractors and subcontractors retained by the City to
construct or maintain the improvements described herein to (i) carry insurance coverage
in the amounts normally and customarily required by the City for such contractors and to
name Grantor (or Grantor's assignee, as may be appropriate) as an additional insured
in such coverages and (ii) separately indemnify, defend, release, and hold Grantor, its
affiliated companies and partnerships, and any of the foregoing parties' employees,
officers, or agents (collectively, the "Grantor Parties," or individually, a "Grantor Party")
harmless from and against any and all claims, liabilities, liens, damages, and expenses
(including, without limitation, reasonable attorneys' fees, court costs, and costs of
investigation) (collectively, "Claims") arising out of, or in connection with, such
contractor's or subcontractor's construction or maintenance of the improvements, even
if such Claims result from the concurrent negligence of any Grantor Party. Additionally,
the City hereby accepts the condition of the Encroachment Area on an AS IS basis
and fully releases the Grantor Parties from any and all Claims arising out of the
construction or maintenance of any City improvements therein, even if
such Claims result from the concurrent negligence of any Grantor Party.
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10. This Agreement is fully performable in Tarrant County, Texas, and should
any action, at law or in equity, arise to enforce or for breach of any provision of this
Agreement or on account of City's maintaining the improvements described herein,
venue for said action shall be in Tarrant County, Texas.
11. All notices, demands, requests or replies provided for or permitted by this
Agreement shall be in writing and shall be deemed delivered when to the addresses
stated below by any one of the following methods: (1) by personal delivery; (2) by
deposit with the United States Postal Service by certified or registered mail, return
receipt requested, postage prepaid; (3) by facsimile transmission; or (4) deposit with a
reputable overnight express delivery service.
To the Grantor:
SLTS Land, L.P.
c/o Cooper & Stebbins, L.P.
Attn: Frank L. Bliss
1256 Main Street, Suite 240
Southlake, Texas 76092
Facsimile: 817-251-8717
To City:
Director of Public Works
1400 Main Street, Suite 320
Southlake, Texas 76092
Facsimile: 817-748-8077
12. This Agreement and the Exhibit incorporated and attached hereto
constitute the entire agreement between the Grantor and City relating to the subject
matter of this Agreement. 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 Exhibit incorporated and attached hereto, of the terms,
conditions, promises, and covenants relating to City's use of the Encroachment Area.
13. The unenforceability, invalidity, or illegality of any provision of this
Agreement shall not render the other provisions unenforceable, invalid, or illegal.
14. 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. It is expressly
understood that if at any time one of the parties is in default in any of its conditions or
covenants hereunder, the failure on the part of the other party to promptly avail itself of
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said rights and remedies which such party may have will not be considered a waiver by
such party.
15. Nothing in this Agreement shall be construed against either party, it being
understood that both parties contributed to the preparation of this Agreement.
16. Nothing in this Agreement shall be construed as a waiver by the City of
the City's governmental immunity, or of any applicable limitation on damages, or any
other legal protection or defense or privilege of the City, except to the extent expressly
provided otherwise herein.
Executed this 29 day of -J AA1VA2 Y , 2010.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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Signed this day of 1 2010.
City of Southlak Tee
By: m ,
ssistant Cit anager
Attest: B @
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i
Lori Payne, City ecreta o a
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Page 5
Signed this 2,9 day of cll ~ 12010.
SLTS Land, L.P., Grantor
By: SLTS Land Genpar, LLC
its General Partner
By:
Frank L. Bliss
Executive Vice President
ACKNOWLEDGEMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority in and for Tarrant County, Texas, on this
day personally appeared Frank L. Bliss, known to me to be the person and officer
whose name is subscribed to the foregoing instrument and acknowledged to me that
he/she acknowledged the foregoing instrument, and is authorized to execute the
foregoing instrument on behalf of the Grantor named in the foregoing instrument, for the
purposes and consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the a 9A day of
2010.
tl w Notary Pubic in an fokVe State of Texas
aNDF A K. HUFFMAN
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