Loading...
Carmel Bay Addition - Encroachment Agreement I ENCROACHMENT AGREEMENT STATE OF TEXAS § §CORD COUNTY OF TARRANT § THIS AGREEMENT is made and entered into by and between the City of Southlake, a home rule municipal corporation in Tarrant County, Texas, acting herein by and through ,, its duly authorized City Manager, Billy Campbell, hereinafter referred to as the "City ", and Carmel Bay Homeowners Association, hereinafter referred to as "Grantee ". A. WHEREAS, Grantee is representing the Carmel Bay Addition to the City of Southlake, Texas recorded in the Plat Records Book of Denton County, Texas (the "Grantee Tract "); and B. WHEREAS, the developer of Carmel Bay Addition has heretofore prepared a plat (Grantee's Plat) of the Grantee tract which dedicates to the public for right -of -way purposes the streets in Carmel Bay particularly described on Exhibit "A ", attached hereto and made a part hereof (the "Encroachment Area "); and C. WHEREAS, at the time of annexation, an existing fence belonging to Grantee was located along Thousand Oaks Court and in the Encroachment Area and City has, subject to limitations, agreed to allow the fence to remain in place; and D. WHEREAS, Grantee wishes to reconstruct the fence along Thousand Oaks Court and brick and metal entry on the west side of entrance to Carmel Bay on the property more particularly described on Exhibit "A "; and E. WHEREAS, Grantee has agreed to provide each adjacent property owner along Thousand Oaks Court who are not part of Carmel Bay, the opportunity to pay the cost for an access gate in the new fence. WITNESSETH: 1. For and in consideration of the payment by Grantee of good and valuable consideration and the true and faithful performance of the mutual covenants herein contained, City hereby grants to Grantee permission to encroach upon, use and occupy portions of the public right -of -way for the purpose of constructing and maintaining a new fence and new brick and metal entry within the Encroachment Area. DALLAS I 568048v2 99999 -00006 ! t 2. All maintenance and operation in connection with such encroachment, use, and occupancy shall be performed 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. There shall be no further encroachments in, under, on or above the surface area of the streets 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. In the event any installation, reinstallation, relocation or repair of any existing or future utility or 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 either remove the portion of the encroachment causing such additional expense, or 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, including restricting or limiting access to streets. In this regard, City shall bear no responsibility or liability for damage or disruption of existing or proposed improvements installed by Grantee, its predecessors or its successors, but City will make reasonable efforts to minimize such damage. 6. The initial term of this agreement shall be twenty -five (25) years, commencing on the date this agreement is executed, subject to termination as provided elsewhere herein. The rights, duties, obligations and liabilities herein set forth shall be appurtenant to, and shall "run with" the Grantee Tract. 7. Upon the termination of this agreement for any reason whatsoever, Grantee shall, at the option of City and at no expense to City, remove all of Grantee's improvements from the Encroachment Area. 8. It is further understood and agreed between the parties hereto that the City streets, including the portions of such streets 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 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 determine in its sole discretion 2 DALLAS 1 568048v2 99999 -00006 • to construct public streets within the public right -of -way, or restrict access to the streets or to use or cause or permit the said portions of the streets 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 cancelled and terminated upon a majority vote of the City Council. 9. In the event this agreement is cancelled 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 remove any improvements as required by this agreement within such time period. 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. It is further understood and agreed that upon the termination of this agreement, Grantee will lose the right to utilize the fence that Grantee is currently utilizing in the area. At that time Grantee will be allowed to replace the fence with another fence on the Grantee Tract if and as allowed by applicable regulations in effect when the fence is replaced. 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 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 respondent 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 3 DALLASI 568048v2 99999 -00006 • 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 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. THIS INDEMNITY DOES NOT AFFECT RIGHTS OF GRANTEE AGAINST ANY THIRD PARTY, INCLUDING ANY RIGHTS OF CONTRIBUTION OR CLAIMS AGAINST THIRD PARTIES FOR DAMAGES. 15. 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 Consent Agreement in its entirety in the deed records. After being so recorded, the original hereof shall be returned to the City Secretary. 16. Grantee covenants and agrees to maintain the encroachments described in Exhibit "A" attached hereto in a neat, safe and good condition at all times. 17. 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 thirty days after written notice thereof. 18. 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 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 entitled to recover interest and reasonable attorneys fees. 4 DALLAS1 568048v2 99999 -00006 EXECUTED this z 4 day of J 4 K w� , 2000. CITY OF SOUTHLAKE CARMEL BAY HOMEOWNERS ASSOCIATION 4 �- By: s By: 94 04.— it. ' .r r.0 y artp . -11, City Manager Title•, Return to: Mrs. Sandy LeGrand City Secretary City of Southlake 667 N. Carroll Ave. Southlake, TX 76092 Phone (817) 481 -5581 5 DALLAS 1 568048v2 99999 -00006 STATE OF TEXAS § COUNTY OF TARRANT § This agreement was acknowledged before me on this day of .ZGLL� , 2000, by Billy Campbell, City Manager of the City of Southlake, Texas who informed me that he is the duly authorized City Manager for the City of Southlake, that he was authorized to execute the above agreement on behalf of said city. t. GIVE r UNDER MY HAND AND SEAL OF OFFICE this the 1 day of .41 lb , 2000. tulk-1\ a otary Public in and for the State of Texas P SANDRA L. LeGRAND * •.�� * Notary Public � � STATE OF TEXAS 0- My Comm. Exp. 02/04/2001 6 DALLAS 1 568048v2 99999 -00006 STATE OF TEXAS §§ § COUNTY OF TARRANT § This agreement was acknowledged before me on this 2 44 day of S0.n LA- r , 2000, by John Holzgraefe, who informed me that he is the duly authori2ed Secretary /Treasurer for the Carmel Bay Homeowners Association, and that he was authorized to execute the above agreement on behalf of said association. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the oil tlay of , 2000. I. No.ary P ■blic in and for the State of Texas JQe�k� Moo 7 DALLAS 1 568048v2 99999 -00006 D200039556 CITY OF SOUTHLAKE 1725 E SOUTHLAKE BLVD SOUTHLAKE TX 76092 - W A R N I N G - T H I S IS PART OF THE OFFICIAL RECORD - -D 0 NOT D E S T R O Y I N D E X E D - - T A R R A N T C O U N T Y T E X A S S U Z A N N E H E N D E R S O N -- COUNTY CLERK O F F I C I A L R E C E I P T T 0: CITY OF SOUTHLAKE RECEIPT NO REGISTER RECD -BY PRINTED DATE TIME 200143291 DR2A LW 02/25/2000 16:07 INSTRUMENT FEECD INDEXED TIME 1 D200039556 WD 20000225 16:07 CG T O T A L: DOCUMENTS: 01 F E E S: 21.00 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.