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HomeMy WebLinkAboutItem 16 - Big Bear Creek TrailMEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROGER NELSON, CITY MANAGER/)p MEETING DATE: AUGUST 15, 2000 SUBJECT: CONSIDER AN EASEMENT AGREEMENT WITH MEMORIAL BAPTIST CHURCH OF GRAPEVINE TO UTILIZE CHURCH PROPERTY FOR THE CONSTRUCTION OF THE BIG BEAR CREEK TRAIL RECOMMENDATION: The Parks & Recreation Advisory Board and staff recommend the City Council approve an easement agreement with Memorial Baptist Church for the use of church property for the development of the Big Bear Creek Trail that will link Parr Park and Bear Creek Park. A copy of the agreement is attached for your review. FUNDING SOURCE: The total estimated cost of the hike and bike trail is $2 million. The City was awarded a $1.56 million grant from the Texas Department of Transportation (TXDOT) for the project. The remaining funds will come from bonds approved in the 1998 election. Also, a total of $40,000 was approved by the Council in this fiscal year's budget for the development of the trail. BACKGROUND: The City Council approved a resolution at the July 6, 1999 Council meeting authorizing staff to submit a TXDOT grant application for the development of a trail system along Big Bear Creek that would link Parr and Bear Creek Parks. The City was informed in January that the Texas Transportation Commission approved the grant at their January 28, 2000 meeting. The TEA -21 grant was for $1.56 million with the City's match coming from funds approved by voters in the October 1998 bond election. A total of $770,000 was approved for the development of hike and bike trails. The attached agreement with Memorial Baptist Church does not require an annual payment. However, according to the agreement, the City will grade vacant church property and install soccer goals and baseball backstops in exchange for the right to use church property for the hike and bike trail. The estimated cost to do this is $25,000. August 9, 2000 (2:19PM) Staff approached officials at Memorial Baptist Church to discuss the possibility of utilizing church property for the trail prior to submitting the grant to TXDOT. Also, staff contracted with a design consultant to provide good cost estimates on constructing the trail prior to grant submission. The consultant estimated that the cost to design and construct the trail would be approximately $2 million, which included a link from Parr Park to Pool Road. The consultant also recommended that the City offer 25% of the total project amount as the City's match in order to be more competitive in the grant scoring process. The City's match amounts to approximately $500,000 and will be paid from funds approved in the 1998 bond election. Exhibits to the agreement are not attached because the actual trail alignment will not be determined until the design phase begins. The Parks & Recreation Advisory Board approved the concept of the agreement with Memorial Baptist Church at the June 20, 2000 meeting. August 9, 2000 (2:19PM) THIS EASEMENT AGREEMENT, made as of the - day of _, 2000, by and between the Memorial Baptist Church (herein called "Grantor"), and the City of Grapevine, Texas, (herein called "Grantee"). In consideration of the covenants and agreements hereafter reserved and contained on the part of Grantee to be observed and performed, the Grantor grants a permanent easement to Grantee those certain Premises (a) the real property described on Exhibit "A" and "B" attached hereto (the "Land"). The subject properties herein called the "Premises". The legal description will be subsequently provided and attached hereto and shall become a part of this Easement, as Exhibit "B". The following, together with the exhibits attached hereto and incorporated herein by reference constitute the provisions of this Easement. 1. GENERAL PROVISIONS (a) Grantor's Address: (b) Grantee's Address: P.O. Box 95104 Grapevine, Texas 76099 (c) Grantee, as a consideration for the conveyance of the Easement, shall maintain the Premises on an as needed basis. (d) Grantee will grade vacant property of Grantor for athletic field use and install soccer goals and baseball/softball backstops on the property shown in attached Exhibit "C". 2. TAXES - Grantor shall pay real property ad valorem taxes, if any, against the Premises, for taxes accruing as of the commencement date of the Easement. It being noted that both Grantor and Grantee are Tax-exempt entities. 3. ALTERATIONS Grantee shall not make any alterations, improvements, or additions to the Premises without first obtaining the written consent of Grantor. Provided, however, that Grantee shall be allowed to construct trails and related appurtenances, including signage, on the Premises. Grantee further agrees to work with the Grantor to provide reasonable and suitable access for construction related equipment in conjunction with future development by the Grantor. Both parties will agree to the appropriate accommodation. 4. AFFIRMATIVE COVENANTS OF GRANTEE Grantees covenant that they shall: 4.1. comply with the terms of any state or federal statute or local ordinance or regulation applicable to Grantee or its use of the Premises, and indemnify and hold the Grantor harmless from penalties, fines, costs, expenses, or damages resulting from its failure to do so; 4.2. comply with the terms and conditions set herein relating to the use, operation, and maintenance of the Premises. 4.3. give to Grantor prompt written notice of any accident, fire, or damage occurring on or to the Premises; 4.4. have no power or authority to create any lien or permit any lien to attach to the Premises, reversion or other estate of Grantor in the Premises and all suppliers, contractors, artisans, mechanics, and laborers and other persons contracting with Grantee with respect to the Premises or any part thereof are hereby charged with notice that the interest of Grantor shall not be subject to liens for improvements made by or on behalf of Grantee. Grantee agrees to do all things necessary to prevent the filing of any mechanic's or other liens against the Premises or any part hereof by reason of work, labor, services, or materials supplied or claimed to have been supplied to Grantee, or any part thereof, through or under Grantee. Except as may otherwise be provided herein, if any such lien shall at any time be filed against the Premises, Grantee shall cause the same to be discharged of record within thirty (30) days after the date of filing of same. If Grantee shall fail to discharge such lien within said period, then, in addition to any other right or remedy of Grantor resulting from Grantees's defaults, Grantor may, but shall not be obligated to, terminate the Easement Agreement and/or discharge the same whether by paying the amount claimed to be due or by procuring the discharge of such lien by giving security or in such other manner as is, or may be, prescribed by law.; and 4.5. Grantee shall install and maintain landscaping and fencing, or other alternative barrier as determined by both parties, in areas reasonably deemed necessary by the Grantor. 5. DAMAGE TO PREMISES 5.1. If the Premises shall be damaged by fire or other casualty of the kind insured against in standard policies of fire or property insurance with extended coverage, but are not thereby rendered untenable in whole or in part, Grantee shall promptly, after receipt of the insurance proceeds, cause such damage to be repaired. Provided, however, that if agreed in writing by the Grantor, this Easement Agreement shall automatically terminate and Grantee shall have no obligations to cause such damage to be repaired as described in the paragraph. 6. INDEMNIFICATION AND INSURANCE RIGHTS 6.1 A. To the extent allow by law, Grantee shall indemnify Grantor and its agents, elected officials, officers, employees and attorneys and save it harmless from and against any 2 and all claims, actions, damages, liability, and expense, including reasonable attorney's fees, in connection with loss of life, personal injury, or damage to property occurring in or about, or arising out of, the Premises, occasioned wholly by any act, occurrence or commission of Grantee, its agent, licenses, contractors, customers or employees. All costs, expenses and reasonable attorney's fees that may be incurred or aid in enforcing the covenants and conditions of the Easement, whether incurred as a result of litigation or otherwise, shall be recovered by the prevailing party from the other party. 7. TRADE FIXTURES All trade fixtures installed by Grantee in the Premises shall remain the property of Grantee and shall be removable at the termination of the Easement, provided Grantee shall not at such time be in default of any provision herein; and, provided further, that in the event of such removal, Grantee shall have repaired the damaged caused by such removal, and promptly restored the Premises to its original order and condition. Any such trade fixture not removed at or prior to such termination shall become the property of Grantor. 8. FORCE MAJEURE In the event that Grantor or Grantee shall be delayed or hindered in or prevented from doing or performing any act or thing required hereunder by reason of any matters beyond the reasonable control of such party, then such party shall not be liable or responsible for any such delay, the doing or performing of such act or thing shall be extended for,a period equivalent to the period of such delay, and this Easement Agreement and the obligations of the other party to perform and comply with all of the terms and provisions of this Easement Agreement shall in no way be affected, impaired, or excused. 9. GRANTOR'S ACCESS TO PREMISES At all times the Grantor shall have access to the Premises for the purpose of site assessment, surveying, environmental testing, clean-up, or any other reason deemed appropriate by Grantor. Grantor agrees to use all reasonable efforts to not interfere with Grantee's use of the Premises, and will contact Grantee prior to accessing the Promises as provided by this Section. 10. EVENT OF DEFAULT The occurrence of the following shall, constitute an event of default hereunder: A. Grantee's failure to perform or observe any provision of the Easement Agreement, after written notice and demand, provided that, if such failure is of such a character as not to permit immediate compliance in the opinion of Grantor, then Grantee's failure to proceed diligently and immediately upon receipt of notice to commence the cure of such failure, and thereafter to complete such cure with all reasonable dispatch within twenty (20) days after written notice form Grantor; provided, however, that if, after exercise of due diligence and its best efforts to cure such default, Grantee is unable to do so within the twenty (20) day period, then the curing period shall be extended for such reasonable time as may be approved by 3 Grantor for curing such default, so long as Grantee continues to diligently prosecute to completion the curing of the default, which in no event shall exceed forty-five (45) days unless specifically agreed to in writing by Grantor; and 11. GRANTOR'S REMEDIES UPON DEFAULT BY Grantee Upon the occurrence of an event of default, Grantor, at its option, may at such times as it may determine, concurrently or successively, as their exclusive remedy: 11.1 In the event of default by Grantee Grantor may order Grantee to take whatever steps are necessary to correct the default. In the event the default is not cured within the time framework established in 14 A above, the Grantor shall at its sole option correct the default and charge Grantee accordingly, or Grantor may at its option terminate the Easement by giving Grantee fourteen (14) days written notice in the event the default is not cured. 11.2 If Grantee shall abandon or surrender the Premises by process of law or otherwise, any property of Grantee left on the Premises shall be deemed to be abandoned but Grantee shall remain liable to Grantor for all cost, loss, damage and expense incurred by Grantor for the removal of such property from the Premises and for the repair of any damage to the Premises caused by such removal. 12. GRANTOR'S RIGHT TO CURE If Grantee shall fail to perform any act required to be made or performed under this Easement Agreement and to cure the same within the relevant time periods Grantor, may (but shall be under no obligation to) at any time thereafter make such payment or perform such act of the account and at the expense of Grantee, and may, to the extent permitted by law, enter upon the Property for such purpose and take all such action thereon as, in Grantor's opinion, may be necessary or appropriate therefore. No such entry shall be deemed an eviction of Grantee. All sums so paid by Grantor and all costs and expenses (including without limitation, reasonable attorney's fees and expense, in each case, to the extent permitted by law) shall survive the expiration or earlier termination of this Easement Agreement and shall be payable by Grantee within ten (10) days of receipt of written notice. 13. AUTHORITY All persons executing the Easement Agreement on behalf of Grantee and Grantor have been authorized to execute the Easement Agreement by such Grantee and Grantor. Evidence of such authority shall be provided upon request. 14. LIABILITY OF GRANTOR 14.1 If Grantor shall breach any covenant to be performed by it under this Easement Agreement, Grantee, after thirty (30) days notice to and demand upon Grantor, shall as its exclusive legal remedy terminate this Easement and vacate the Premises. 0 14.2 Grantee shall be in exclusive control and possession of the Premises, and Grantor shall not be liable for any injury or damages to any property or to any person on or about the Premises, nor for any injury or damage to any property of Grantee. 15. TIME OF THE ESSENCE Time is of the essence in all provisions of this Easement Agreement. 16. QUIET ENJOYMENT Grantor warrants that Grantee shall be granted peaceful and quiet enjoyment of the Premises free from any interference by Grantor provided Grantee fully and punctually performs and complies with the terms, conditions, and provisions of this Easement Agreement. 17. INVALID PROVISIONS If any provision of the Easement Agreement shall be determined to be void by any court of competent jurisdiction or by any law enacted subsequent to the date hereof, then such determination shall not affect any other provision hereof, all of which other provisions shall remain in full force and effect. 18. ASSIGNMENT Neither party shall have the right to assign this Easement Agreement to any other party without the written consent of the other party, which shall not be unreasonably withheld. 19. NOTICES All notices, requests, consents and other communications required or permitted under this Easement Agreement shall be in writing (including telex, facsimile and telegraphic communication) and shall be (as elected by the person giving such notice) hand delivered by messenger or overnight courier service, faxed or telecommunicated (with original to follow by overnight commercial courier for delivery on the next business day), or mailed by registered or certified mail (postage prepaid), return receipt requested, addressed to the parties as follows: If to Grantee City of Grapevine, Texas P.O. Box 95104 Grapevine, Texas 76099 Attention: Joe Moore with copies to: BOYLE & LOWRY, L.L.P. 4201 Wingren, Suite 108 Irving, Texas 75062-2763 5