Francis Throop Survey, Abstract No. 1511 - Temporary Construction Easement in Settlement for Condemnation (2) Electronically Recorded Tarrant County Texas
Official Public Records 5/31/2013 4:37 PM D213138792
TE� IJCTION EAS EN IN SViiiEMENT OF
Mary Louise Garcia CONDEMNATInitter: SIMPLIFILE
Rattikin Title Company
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF TARRANT §
Effective as of July 5, 2013 (the "Effective Date ") that Brian Jeffrey Massey a /k/a/ Jeff
Massey, whose mailing address is 1200 Kimball Avenue, Southlake, TX 76092, hereinafter
called "Grantor," for and in consideration of Ten and No /100 Dollars ($10.00) and other good
and valuable consideration paid by The City of Southlake, Texas, a municipal corporation,
1400 Main Street, Southlake Texas, 76092, hereinafter referred to as "Grantee," pursuant to this
Temporary Construction Easement Agreement in Settlement of Condemnation (the "Temporary
Easement Agreement ") does hereby grant unto Grantee a temporary, nonexclusive easement
( "Temporary Easement ") over the surface of the land with the legal description in Exhibit "A"
and shown on Exhibit "B" as the Temporary Construction Easement Area (the "Temporary
Easement Area "), such Temporary Easement Area to be utilized solely to accommodate
movement of equipment and materials and general construction activities in connection with the
Kimball Avenue road expansion project (the "Project "), but only as may be necessary for such
Project and only pursuant to the terms and conditions set forth below.
This temporary construction easement grant is made by Grantor and accepted by Grantee
subject to the following exceptions, reservations, restrictions, conditions and provisions:
1. The Temporary Easement is subject to all encumbrances, conditions, covenants,
restrictions, reservations, exceptions, rights of way, and easements affecting the
Temporary Easement Area or any part thereof, including building and zoning
ordinances, all laws, regulations and restrictions, and restrictions by municipal or
other governmental authorities applicable to and enforceable against the Temporary
Easement Area.
2. The Temporary Easement is subject to all visible encumbrances on, in, or affecting
the Temporary Easement Area.
3. Grantee, its agents, contractors, and subcontractors shall be entitled to use said
Temporary Easement Area solely to accommodate movement of equipment and
materials and general construction activities in connection with the Project, and only
as may be necessary for such Project and in accordance with the terns and conditions
of this Temporary Easement Agreement, subject to the termination provision,
provided however, the portion of the Temporary Easement Area exceeding fifteen
(15) feet in width and granted for purposes of the construction of a new driveway and
drive (the "New Driveway ") for Grantor pursuant to Paragraph 6.01f) of the
Settlement Agreement in Lieu of Condemnation (the "Settlement Agreement ") shall
only be used for purposes of Grantee complying with its obligations under Paragraph
6.01f) of the Settlement Agreement.
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TEMPORARY CONSTRUCTION EASEMENT IN SETTLEMENT OF
CONDEMNATION
Rattikin Title Company
G b SILT
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF TARRANT §
Effective as of July 5, 2013 (the "Effective Date ") that Brian Jeffrey Massey a /k/a/ Jeff
Massey, whose mailing address is 1200 Kimball Avenue, Southlake, TX 76092, hereinafter
called "Grantor," for and in consideration of Ten and No /100 Dollars ($10.00) and other good
and valuable consideration paid by The City of Southlake, Texas, a municipal corporation,
1400 Main Street, Southlake Texas, 76092, hereinafter referred to as "Grantee," pursuant to this
Temporary Construction Easement Agreement in Settlement of Condemnation (the "Temporary
Easement Agreement ") does hereby grant unto Grantee a temporary, nonexclusive easement
( "Temporary Easement ") over the surface of the land with the legal description in Exhibit "A"
and shown on Exhibit "B" as the Temporary Construction Easement Area (the "Temporary
Easement Area "), such Temporary Easement Area to be utilized solely to accommodate
movement of equipment and materials and general construction activities in connection with the
Kimball Avenue road expansion project (the "Project "), but only as may be necessary for such
Project and only pursuant to the terms and conditions set forth below.
This temporary construction easement grant is made by Grantor and accepted by Grantee
subject to the following exceptions, reservations, restrictions, conditions and provisions:
1. The Temporary Easement is subject to all encumbrances, conditions, covenants,
restrictions, reservations, exceptions, rights of way, and easements affecting the
Temporary Easement Area or any part thereof, including building and zoning
ordinances, all laws, regulations and restrictions, and restrictions by municipal or
other governmental authorities applicable to and enforceable against the Temporary
Easement Area.
2. The Temporary Easement is subject to all visible encumbrances on, in, or affecting
the Temporary Easement Area.
3. Grantee, its agents, contractors, and subcontractors shall be entitled to use said
Temporary Easement Area solely to accommodate movement of equipment and
materials and general construction activities in connection with the Project, and only
as may be necessary for such Project and in accordance with the terms and conditions
of this Temporary Easement Agreement, subject to the termination provision,
provided however, the portion of the Temporary Easement Area exceeding fifteen
(15) feet in width and granted for purposes of the construction of a new driveway and
drive (the "New Driveway ") for Grantor pursuant to Paragraph 6.01 f) of the
Settlement Agreement in Lieu of Condemnation (the "Settlement Agreement ") shall
only be used for purposes of Grantee complying with its obligations under Paragraph
6.01 f) of the Settlement Agreement. This document has been electronically recorded by
Rattikin Title Company
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Data horded 1—
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Document Number_ )
4. Grantee's use of the Temporary Easement Area will be strictly limited to the use of
the surface of the Temporary Easement Area only, and will be further limited as
follows:
a) Until a new driveway is constructed across the Temporary Easement Area at a
location approved in writing by Grantor, Grantee shall not close or impede
access to Grantor's property over and through the existing driveways from
Kimball Avenue that cross the Temporary Easement Area, provided, however,
Grantee may temporarily close one of Grantor's existing driveways from
Kimball Avenue if: i) it is necessary and unavoidable for utility installation,
relocation or other construction activities in connection with the Project; and
ii) Grantee provides Grantor with an alternative, temporary access drive to
Grantor's property from Kimball Avenue that is reasonably satisfactory to
Grantor.
b) While this Temporary Easement Agreement is in effect and during the Project,
Grantee will: (i) provide continuous access from Grantor's property to
Highland Street across the existing drive from Grantor's property to Highland
Street or an alternative, temporary access drive from Grantor's property to
Highland Street that is reasonably satisfactory to Grantor; ii) provide
continuous access to Grantor's entrances to the buildings located on Grantor's
property and /or iii) not impede Grantor's sidewalk on the east side of Grantor's
property adjacent to Grantor's existing building.
c) Grantee will not store, or allow any other person or entity to store, any
gasoline, diesel or other fuel, oil, or any other dangerous, hazardous or toxic
materials or compounds on the Temporary Easement Area.
5. It shall be Grantee's sole responsibility to ensure that Grantee's use of the Temporary
Easement Area is adequate for Grantee's intended and actual use, and that Grantee's
use of the Temporary Easement Area complies with all state, federal, and local
requirements. Grantee hereby agrees to obtain, and require its contractors, agents and
employees to obtain, all required permits and governmental approvals for their
activity so as to meet all regulatory requirements and shall complete all work in a
good and workmanlike manner. No later than thirty (30) days after the Effective
Date, Grantee will install a temporary construction fence on the eastern boundary of
the Temporary Easement Area and will maintain such temporary construction fence
in good condition. No later than thirty (30) days after the earlier of (i) the termination
or expiration of this Temporary Easement Agreement or (ii) the date on which
Grantee's use of the Temporary Easement Area is completed, Grantee will remove the
temporary construction fence and shall cover any unimproved areas of the Temporary
Easement Area with St. Augustine grass sod of a good quality and shall repair any
damage to the sidewalk or other improvements located in the Temporary Easement
Area. Grantee shall, in all activities undertaken pursuant to this Temporary Easement
Agreement, comply and require its contractors, agents and employees to comply with
all federal, state and local laws, statutes, orders, ordinances, rules, regulations, plans,
policies and decrees.
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6. It is understood and agreed that this Temporary Easement grant is not a conveyance
of any land in the Temporary Easement Area but is a grant solely of the temporary
non - exclusive working space easement described herein. Without limitation, Grantor
and Grantor's heirs, successors, and assigns forever, reserve all water, oil, gas,
hydrocarbons, and other minerals in and under and that may be produced from the
Temporary Easement Area (the "Temporary Easement Property Reserved Estate ");
provided, however, that Grantor for the period of the Temporary Easement
Agreement and any extension of the Temporary Easement Agreement shall not
explore for, mine or drill for or otherwise produce the water, oil, gas (including
casinghead gas and all gaseous substances), hydrocarbons, or any other minerals
reserved herein, from or on the surface of the Temporary Easement Area, but during
such period Grantor shall have the right to produce the water, oil, gas, hydrocarbons,
and other minerals reserved herein only by directional drilling or other indirect means
at a depth of not less than two hundred feet (200') below the surface of the
Temporary Easement Area in a manner which does not enter upon, or interfere with
the occupancy, use or enjoyment of the surface of the Temporary Easement Area by
Grantee, its successors and assigns pursuant to the terms of this Temporary Easement
Agreement. This limitation on the Temporary Easement Area and /or the Temporary
Easement Property Reserved Estate will terminate and be of no further force or effect
when this Temporary Easement Agreement terminates or expires.
7. Grantee shall not permit to be placed against the Temporary Easement Area, or any
part thereof, any design professionals', mechanics', materialmen's, contractors' or
subcontractors' liens with regard to Grantee's actions and activities upon the
Temporary Easement Area. GRANTEE AGREES, TO THE EXTENT
PERMITTED BY LAW, TO HOLD THE GRANTOR HARMLESS FOR ANY
LOSS ARISING FROM ANY SUCH LIENS WHICH MIGHT BE FILED
AGAINST GRANTOR'S PROPERTY, INCLUDING WITHOUT
LIMITATION THE TEMPORARY EASEMENT AREA. THE INDEMNITY
AND OTHER RIGHTS AFFORDED BY THIS SECTION SHALL SURVIVE
THE TERMINATION AND EXPIRATION OF THIS TEMPORARY
EASEMENT AGREEMENT.
8. Grantor, Grantor's successors and assigns, and the tenants, invitees, and guests of any
of the foregoing, shall have the right to use the Temporary Easement Area for any
purpose or purposes whatsoever, provided that such use does not unreasonably
interfere with or obstruct the use of the Temporary Easement Area by Grantee for the
purposes specified and on the terms contained in this Temporary Easement
Agreement.
9. Upon the termination, expiration, or revocation of this Temporary Easement
Agreement, Grantee shall, at its own and sole cost and expense, restore the
Temporary Easement Area to the same or better condition in which it was prior to
Grantee's use, with the exception of the portion of the Temporary Easement Area
upon which Grantee will construct the New Driveway pursuant to Paragraph 6.01 f) of
the Settlement Agreement. In case Grantee shall fail to restore Grantor's property to
its prior condition within a reasonable time after the effective date of the termination,
expiration, or revocation, then Grantor may proceed with such work at the expense of
Grantee.
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10. No termination or expiration of the Temporary Easement Agreement shall release
Grantee from any liability or obligation under this Temporary Easement Agreement,
except that in the event of such termination or expiration, Grantee's obligation to
construct the New Driveway shall be conditioned upon Grantor agreeing to and
extend the Temporary Easement Agreement at no cost to Grantor in accordance with
Paragraph 16 below. This provision will not affect Grantee's right to extend the
Temporary Easement Agreement for a portion of the Temporary Easement Area in
accordance with Paragraph 15 below.
11. In the event of a dispute between the parties with respect to the terms, conditions,
rights, or obligation of or under this Temporary Easement Agreement, the prevailing
party shall be entitled to collect from the other party its reasonable attorneys' fees.
12. This Temporary Easement Agreement is not valid or binding on any party unless
executed and /or authorized by all of the parties listed below. This Temporary
Easement Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the
same instrument.
13. Grantee shall obtain, and shall require the general contractor entering the Temporary
Easement Area to obtain adequate insurance covering personal injury, death, and
property damage from his /its activities and the activities of its employees,
subcontractors, and consultants on the Temporary Easement Area.
14. This Temporary Easement Agreement will terminate and expire and be of no further
force and effect without further action or notice by or to Grantor or Grantee on the
earlier of: (i) expiration of twelve months from the Effective Date (the "Initial
Temporary Easement Term "), or (ii) upon final acceptance by the City of its
contractor's work on the Project as such work relates to Grantor's property.
15. At the conclusion of the Initial Temporary Easement Term, Grantee may elect to
extend the Temporary Easement Agreement to cover that part of the Temporary
Easement Area to the south of Grantor's existing buildings for one additional twelve
(12) month period to begin immediately at the conclusion of the Initial Temporary
Easement Term (the "Extension Period "). To exercise its right to so extend the time
period covered by the Temporary Easement Agreement, Grantee shall: i) give Grantor
written notice (the "Extension Notice ") no later than ninety (90) days before the
expiration of the Initial Temporary Easement Term that Grantee will exercise the
extension; ii) pay to Grantor, at the time of the Extension Notice, the sum of Two
Thousand Five Hundred Dollars ($2,500.00). If Grantor properly exercises its right
to extend the Temporary Easement Agreement for the Extension Period, then this
Temporary Easement Agreement will expire and be of no further force and effect
without further action or notice by or to Grantor or Grantee at the conclusion of the
Extension Period.
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16. If necessary for Grantee to construct the New Driveway, Grantor will agree to extend
the Temporary Easement Agreement to cover that portion of the Temporary
Easement Area required to construct the New Driveway for one additional twelve
(12) month period to begin immediately at the conclusion of the Initial Temporary
Easement Term at no cost to Grantee and for the sole purpose of permitting the
construction or completion of the New Driveway.
17. Grantee may not assign this Temporary Agreement or any of Grantee's rights under it
without Grantor's prior written consent, which consent will not be unreasonably
withheld, and any attempted assignment is void. The consent by Grantor to any
assignment by Grantee will not release Grantee of its obligations under this
Temporary Easement Agreement, and Grantee and the assignee will be jointly and
severally liable for the performance of those obligations after any such assignment.
This Temporary Easement Agreement binds, benefits, and may be enforced by the
parties and their respective heirs, executors, administrators, legal representatives,
successors, and permitted assigns, if any.
18. Grantee agrees and represents that: (i) this Temporary Easement Agreement is
binding on Grantee and enforceable as an agreement in settlement of condemnation
under Texas A&M University- Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002) and
City of Carrollton v. Singer, 232 S.W.3d 790 (Tex. App. - -Fort Worth 2007, pet.
denied), as clarified by any subsequent decisions of the Texas Supreme Court or the
Fort Worth Court of Appeals. In the event of a suit by Grantor against Grantee for
breach of this Temporary Easement Agreement, Grantee will not assert immunity
from such suit, pursuant to the law as set out in the cases cited above.
EXECUTED as the dates of the respective acknowledgements hereinafter set forth,
but to be effective as of May31, 2013.
GRANTOR: GRANTEE:
BRIAN JEFFREY MASSEY CITY OF SOUTHLAKE, TEXAS
By: / u..• ir. 1 _ By
rian Jeffr: ssey The Honorable John Terr-11, Mayor
Q
O .• �
btt
Alicia Richardsoi4, City. Secretary
REMAINDER OF PAGE INTENTIONALLY BLANK "" ° °``'
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32475.8
ACKNOWLEDGMENTS
STATE OF TEXAS §
COUNTY OF TARRANT §
Before me, the undersigned authority in and for the State of Texas, on this day personally
appeared BRIAN JEFFREY MASSEY, known to me (or proved to me on the oath of
or through Dc,ii1XS Ll 4j y t [description of identity card or other
document]) to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes and considerat's ' therein
expressed.
GIVEN UNDER MY HAND AND SEAL OF F CE, this the 3 C) d: y u f May,
2013.
oct' • SHAY T0WNSEND
* Notary Pubic ` Notary Public in and �: r
* �. STATE OF TEXAS
cow My Comm Exp. Dec. 18, 2016) The State of Texas
My Commission Expires:
Typed or Printed Na U e of Notary
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32475.8
STATE OF TEXAS §
§
COUNTY OF TARRANT §
Before me, the undersigned authority in and for the State of Texas, on this day personally
appeared JOHN TERRELL, Mayor of the City of Southlake, known to me (or proved to me on
the oath of or through [description of identity card or
other document]) to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes and consideration therein
expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 31/A day of May,
2013.
, =c LAUREN J. PHIWPS
• * • NOTARY PUBLIC
STATE OF TEXAS Notary Publ in nd for
4-0c- , MY COMM. EXP 11/10/2014 The State of Texas
My Commission Expires: LI4u•g,J N.. . 1 7 4‘1.14 P
Typed or Printed Name of Notary
It•to• Zo1
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32475.8
Exhibit "A"
Property Description of Temporary Easement Area
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32475.8
EXHIBIT "A"
LEGAL DESCRIPTION
TEMPORARY CONSTRUCTION EASEMENT
NORTH KIMBALL AVENUE
PARCEL 15
BEING 0.261 acre of land located in the FRANCIS THROOP SURVEY,
ABSTRACT No. 1511, Southlake, Tarrant County, Texas, and being a portion of
a tract of land conveyed to Jeff Massey, by the deed recorded in Volume 16881,
Page 198, of the Deed Records of Tarrant County, Texas. Said 0.261 acre of
land being more particularly described by metes and bounds as follows:
BEGINNING at a point in the new West right -of -way line of North Kimball
Avenue, and lying N 89° 45' 37" W 49.42 feet and S 00° 49' 31" E 15.00
feet, from a "PK" nail found marking the Northeast corner of said Massey
Tract;
THENCE S 00° 49' 31" E 77.80 feet, to a point;
THENCE S 89° 10' 29" W 10.00 feet, to a point;
THENCE S 00° 49' 31" E 25.00 feet, to a point;
THENCE N 89° 10' 29" E 7.00 feet, to a point;
THENCE S 00° 49' 31" E 275.00 feet, to a point;
THENCE N 89° 10' 29" E 3.00 feet, to a point;
THENCE S 00° 49' 31" E 85.27 feet, to a point;
THENCE S 45° 00' 00" W 19.71 feet, to a point;
THENCE N 89° 38' 59" W 10.87 feet, to a point;
THENCE N 00° 49' 31" W 164.99 feet, to a point;
THENCE S 88° 46' 50" E 7.31 feet, to a point;
THENCE N 00° 44' 35" W 192.81 feet, to a point;
THENCE S 89° 10' 29" W 13.21 feet, to a point;
THENCE N 00° 39' 36" W 92.65 feet, to a point;
THENCE N 75° 27' 39" W 109.12 feet, to a point;
THENCE S 89° 45' 37" E 135.59 feet, to the POINT OF BEGINNING,
containing 0.261 acre (11,389 square feet) of land.
EXHIBIT
G.\20091LEGALSlKIMBALL- LEGALS\ \TEMP -15A. Doc
Exhibit "B"
Survey of Temporary Easement Area
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32475.8
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RICHARD HOLUDAY AND WIFE,
CALL TABLE MARY ANN HOLUDAY z
L -1 S 00 °49'31 "E 77.80' VOL. 14325, PG. 524, D.R.T.C.T.
L -2 S 89°10'291V 10.00' I 1
L -3 5 00 °49'31 "E 25.00'
L -4 N 89 °10'29 "E 7.00' POINT OF cf NORTHWEST CORNER
L -5 N 89 °10'29 "E 3.00' BEGINNING D MASSEY TRACT
L -6 5 88 °46'50 "E 7.31' S 00 °49'31 "E "PK" NAIL FOUND
L - S 89 °45'37 "E 135.59' PROPOSED COMMON 15.00' - -
ACCESS EASEMENT TUMBLEWEED
— — - I —� fr li TRAIL
N 75 °27'39 "W ; N 8 49.42 7'W
' J
108.1 1 NEW
N 00 °39'36 "W M 1 RICHTtOF -WAY
92.65' J I -2 LINE
• 1 r -4
S 89 °10'29 "W 13.21' I
1 3 I 1
I
JEFF MASSEY M - 124
0I
LOT 3, THE HILL ADDITION I VOL. 16881, PG. 198 ' ° M Q Yd
VOL. 385 -159, PG. 96 -04.
P.R.T_C.T. D.R.T.C.T. N rn Cr) °•
=
O� le 0 �
1 10 N I 0 CRIPPLE CREEK
c., T kMPORARY CONSTRUCTION Z N I Z LANE
c? <,'• EASEMENT, 0.261 ACRE L -6 _ _
��O a° 11,389 SOFT. PROPO ED WALL EASEMENT
.
C> � N 00 °49'31 "W 1
�� 0�� 1 164.99' _
1
P NEW ., I
RIGHT -OF -WAY LINE 1
S 00 °4.9'31 "E
•
N 89 °38'59 "W 85 27'
— _
1/2" IRS- 10.87' ""-• . 1
1 I
1
SURVEY UNE I _ _ CENTERUNE ROAD _
"PK" NAIL FOUND
_ _
"PK" NAIL FOUND IN _ _ SOUTHEAST CORNER
S 45 °0 '00 "W OF MASSEY TRACT
CENTERLINE OF ROAD 1 9.71 ' I 1 �J� ti�
w (S' PG
4S sp G, PO
1 ii . , LO I
N , x � I I
SCALE 1 "= 100'
` CITY OF SOUTHLAKE
g 1400 MAIN STREET, SOUTHLAKE, TEXAS, 76092
NORTH KIMBALL AVENUE, SH 114 TO EAST HIGHLAND STREET
EXHIBIT "B" - .
BRrrrAIN &CIwroRD TEMPORARY CONSTRUCTION �F. -. I-
LAND SURVEYING A( EASEMENT .� JAMES L BRITTAIN ;
, �cA*R� 9 • 0:1 M
TOPOGRAPHIC MAPPING r. ..... i ... ...................•.....:....- , `--
0.261 ACRE OF LAND `, _
.r ;.. . � ;
IT) 92 11 - 97190 19371 489-7 I12 9 ..... .
:
FAX
( 3 926 -9347 LOCATED IN THE ` � 1674 K
P.O. BOX 1137137 4 r 3909 90JTH FREEWAY \� AyQ ff5 �. �� 7 W
FORT KIM, 30093 78310 FRANCIS THROOP SURVEY s uR� �
OWL RaRiR.°ritt«°- °rar1«dAwn ABSTRACT No. 1511 � .
SOUTHLAKE, TARRANT COUNTY, TEXAS JULY 6, 2010
\KIMBALL\ .T - 150.\ REVISED: MAY 28, 2013 s 14494