Oak Pointe Addition (Lot 12, Block 2) - Park Encroachment and Maintenance Agreement ORIGINAL DOCUMENT
CITY O SOUTHLAKE
Cou;',cil Action: Y N Ord. /Res. No.
Date Approved I,P- nit - 1�
PARK ENCROACHMENT AND MAINTENANCE AGREEMENT
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 representative, hereinafter referred to as "the City," and
George Etux Barbara Derby , hereinafter collectively referred to as "Grantee,"
Grantee being the owner of that certain single - family residential real property located at
_ 2600 Ridgecrest Drive Southlake, Texas, more particularly described as Lot _12_,
Block _ of the _Oak Pointe Addition to the City of Southlake, hereinafter referred to
as "Grantee's lot ").
TERMS AND PROVISIONS
1. The City owns North Park, hereinafter referred to as "the Park ", which
property is more particularly described as Lot 1, Block 1 of the North Park Addition to
the City of Southlake. However, engineering considerations have required that the City
locate the fence and wall separating the Park from Grantee's lot, hereinafter referred to
as "the Park fence," approximately five feet inside the Park boundary line, as depicted
on the survey or drawing attached hereto as Exhibit A, attached hereto and
incorporated herein. For and in consideration of Grantee's true and faithful performance
of the covenants herein contained, the City grants to Grantee permission to fence in,
encroach upon, use and occupy the five -foot long strip of the Park adjacent to Grantee's
lot between Grantee's property line and the Park fence, hereinafter referred to as "the
"Encroachment Area," for uses consistent with Grantee's use of Grantee's lot as a
single - family residence, subject to the limitations stated herein. Should Grantee choose
to fence in the Encroachment Area, Grantee shall do so using fencing consistent with
the fences located on Grantee's lot.
2. Grantee shall maintain the Encroachment Area same in strict compliance
with the requirements of this Agreement and the Ordinances and Codes of the City, and
in a condition similar to Grantee's lot, and in a neat, safe and good condition at all times
including maintaining grass, landscaping, mowing and edging.
3. The parties agree that Grantee shall not be entitled to any other or further
encroachments in, under, on, or above the property of the City, including its streets,
public rights -of -way and parks, without prior written consent of the City.
4. Grantee shall not construct or permit the installation of any improvements
on or in the Encroachment Area, including any utilities, with the exception that Grantee,
to the extent necessary to comply with the other provisions of this Agreement, may
install sprinkler system improvements customary used for single - family residential lots in
the Encroachment Area, if reasonably necessary to irrigate the Encroachment Area,
consistent with those sprinkler system improvements installed in Grantee's lot. Any
such installation shall be at no expense to the City, and Grantee shall be solely
responsible not only for the installation and maintenance of such sprinkler system
improvements, and for the costs of any grass, other plants, water, fertilizer and other
supplies and equipment necessary to maintain and irrigate the Encroachment Area.
5. Any work or activities conducted by Grantee in the Encroachment Area
shall be done in such a manner as to avoid damage to the Park fence and any other
City improvements. Grantee shall notify the City if Grantee becomes aware of any
structural damage or deterioration to the Park fence.
6. During the term of this Agreement, the City may enter and utilize the
Encroachment Area at any time for the purpose of maintaining the Park wall, or for
installing or maintaining improvements necessary for the health, safety and welfare of
the public or for any other public purpose, and in this regard, the City shall bear no
responsibility for liability for damage or disruption of improvements installed by Grantee
or its successors, but the City will make reasonable efforts to minimize such damage.
7. The initial term of this Agreement shall be thirty (30) years, commencing
on the date this Agreement is fully executed, subject to termination as provided
elsewhere herein.
8. The rights, duties, obligations and liabilities herein set forth may only be
assigned by Grantee upon the sale by Grantee of Grantee's lot to those persons
purchasing Grantee's lot. In the event Grantee sells Grantee's lot, Grantee shall
promptly notify the City of such sale and the name of the purchaser.
9. Upon the termination of this Agreement for any reason whatsoever,
Grantee shall, at the option of the City and at no expense to the City, remove all of
Grantee's improvements located in the Encroachment Area.
10. In the event the City elects to terminate this Agreement as provided in
Paragraph 11, and such termination is without cause, the City will give Grantee ninety
(90) days advance written notice of the City's intent to terminate this Agreement and to
utilize the Encroachment Area. Grantee shall remove any improvements in the
Encroachment Area permitted by this Agreement within such time period. The City will
make reasonable efforts to avoid interfering with Grantee's use of the Encroachment
Area until such time period has expired unless approved by Grantee.
11. Grantee acknowledges that the City's property which Grantee is hereby
granted permission to use and encroach upon, are held by the City for the benefit of the
public; that the City exercises such powers over such public property as have been
delegated to it by the Constitution of the State of Texas or by the Legislature; and that
the City cannot contract away its duty and its legislative power to control such property
for the use and benefit of the public. It is accordingly agreed that if the City Council of
the City should, at any time during the term hereof, determine, in its sole discretion, that
there is a need for the use of the Encroachment Area for any public purpose, including
utilities, park purposes or other recreational facilities or any other public purpose,
whether presently contemplated or not, then the City may unilaterally terminate this
Agreement, with or without cause, upon a majority vote of the City Council. Such
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termination shall be effective immediately if the termination is for cause, or at the end of
the notice period referred to herein, if the termination is without cause.
12. Grantee understands and agrees that the granting of permission for any
encroachment hereunder is not meant to convey to Grantee any right to use or occupy
property other than or in excess of the contemplated encroachment purposes, or to
extend to a third party except as expressly permitted herein, regardless of whether
Grantee attempts to assign or transfer any rights under this Agreement to such third
party.
13. 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 any improvements located in the Encroachment Area.
14. 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 the 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; and that the doctrine of respondeat superior shall not apply as between the
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 the City and Grantee.
15. GRANTEE COVENANTS AND AGREES TO RELEASE, HOLD
HARMLESS AND INDEMNIFY, AND DOES HEREBY RELEASE, HOLD HARMLESS,
INDEMNIFY, AND DEFEND THE 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, ARISING OUT OF OR IN CONNECTION WITH,
DIRECTLY OR INDIRECTLY, GRANTEE'S OCCUPANCY AND /OR USE, DIRECTLY
OR INDIRECTLY, OF THE ENCROACHMENT AREA, AND THE CONSTRUCTION,
MAINTENANCE, AND OPERATION OF ANY IMPROVEMENTS LOCATED IN THE
ENCROACHMENT AREA, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART,
BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES OF THE CITY,
INCLUDING ALL DAMAGES, COSTS, AND EXPENSES, INCLUDING ATTORNEYS'
FEES AND COURT COSTS; AND GRANTEE HEREBY ASSUMES ALL LIABILITY
AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. GRANTEE LIKEWISE
HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY AND HEREBY
INDEMNIFIES THE 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,
Page 3
CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR
TRESPASSERS.
17. Grantee consents to the recordation of this Agreement in the deed
records. After being so recorded, the original hereof shall be returned to the City
Secretary of the City.
18. This action is fully performable in Tarrant County, Texas, and should any
action, at law or in equity, arise out of the terms of this Agreement or on account of
Grantee's maintaining the encroachments described herein, venue for said action shall
be in Tarrant County, Texas, and the substantive laws of the state of Texas, without
regard to its choice of law rules, shall apply.
19. In any action for the enforcement of the obligations of Grantee, the
prevailing party shall be entitled to recover interest and reasonable attorney's fees.
20. 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, return receipt requested,
postage prepaid; (3) by prepaid telegram, or (4) by deposit with an overnight express
delivery service.
To the City:
To Grantee:
21. This Agreement and the exhibits incorporated and attached hereto
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.
Page 4
22. The unenforceability, invalidity, or illegality of any provision of this
Agreement shall not render the other provisions unenforceable, invalid, or illegal.
23. 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 Grantee is in default in any of its conditions or covenants
hereunder, the failure on the part of the City to promptly avail itself of said rights and
remedies which the City may have, will not be considered a waiver on the part of the
City, but the City may at any time avail itself of said rights or remedies or elect to
terminate this Agreement on account of said default, unless expressly provided
otherwise herein.
24. This Agreement shall be construed neutrally and not more strictly against
either party.
25. There are no intended third -party beneficiaries to this Agreement, except
those described in paragraphs 8 and 15.
25. Nothing in this Agreement shall be construed as a waiver 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 or
necessarily implied otherwise herein.
/
Executed this `�" day of :1 „te✓Yi , 2012.
tttttt ° °
ATTEST: ♦ TN�gk ° CITY OF SOUTHLAKE, TEXAS, Grantor
bitt a Ad iteki S die
By:
Alicia Richardsoli.it y y et The onorable Joh i errell, Mayor
,°°1,1, *
N l 11 � ' ♦ ♦ ♦ ♦♦
Page 5
Executed this .3C) day of Mae...-2 , 20
2te , Grantee
Name:
4 10,
ACKNOWLEDGEMENT AN ► VERIFICATI •
STATE OF TEXAS §
COUNTY OF TARRANT §
Before me, the undersigned authority, on this day personally appeared
, known to me to be the person whose name is subscribed to
the for oing irMrument and acknowledged to me that he /she executed the foregoing
instrument for the purposes and consideration therein expressed.
A Given under my hand and seal of office, this the 3o day of
NWr , 2012.
t io0/, le ft
ary Pu $ic in and for the tate of Texas
Type or P otary's Name
My Commission Expires:
l Avtili HOLLY GWENDOLYN BLAKE
4 w My Commission Expires
October 24, 2015
Page 6
Y
Executed this day of c florgit-kt_ , 20 (7
,i rantee
ame: rte` Tmawaip
ACKNOWLEDGEMENT AND VERIFICATION
STATE OF TEXAS §
COUNTY OF TARRANT §
•
Before me, the undersigned authority, on this day personally appeared
L DO , known to me to be the person whose name is subscribed to
the foregoing intument and acknowledged to me that he /she executed the foregoing
instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office, this the . k) day of
k)\.,( r`'`te— , 2012.
Not'' ubl ~`in and for the State of Texas
4 LAGIMad
Type or Print- Notarys Name
My Commission Expires:
1. v _; — a-01S
,
� HOt.IY GYVENI)OLYN BLAKE
AFTER FILING PLEASE RETURN TO: , � j " My Commission Expires
i
October 24, 2015
City of Southlake
Office of the City Secretary
1400 Main Street, Suite 270
Southlake, TX. 76092
Page 7
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MARY LOUISE GARCIA
COUNTY CLERK Irk
t r� 100 West Weatherford Fort Worth, TX 76196 -0401
••" • • 1". PHONE (817) 884 -1195
CITY OF SOUTHLAKE
1400 MAIN ST STE 270
SOUTHLAKE, TX 76092
Submitter: CITY OF SOUTHLAKE
DO NOT DESTROY
WARNING - THIS IS PART OF THE OFFICIAL RECORD.
Filed For Registration: 12/10/2012 9:44 AM
Instrument #: D212300925
A 9 PGS $44.00
By l
D212300925
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.
Prepared by: CAMADDOCK