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HomeMy WebLinkAboutItem 11 - Memorial Baptist ChurchMEMO TO: FROM: MEETING DATE: SUBJECT: RECOMMENDATION: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL ROGER NELSON, CITY MANAGER JUNE 15, 2004 AMENDED EASEMENT AGREEMENT — MEMORIAL BAPTIST CHURCH City Council to consider amending a previous Easement Agreement with Memorial Baptist Church (MBC) that provided that the City of Grapevine perform services to grade property for athletic field use and install soccer goals and baseball/softball backstops to read that the City pay MBC $40,000 in return for the granting of the Easement. FUNDING SOURCE: Funds for payment are available in 176-76120-001, $40,000. BACKGROUND: On August 15, 2000, the City Council authorized staff to sign the original Easement Agreement with Memorial Baptist for consideration of a 25 -foot easement to build a portion of the Big Bear Creek Trail through their property. The original Easement Agreement called for the City to grade a portion of their property for athletic field use and install soccer goals and baseball/softball backstop, which had been estimated to cost $40,000. Because the piece of property they chose to be graded has not developed as Memorial Baptist Church had hoped, they are requesting payment for the Easement in lieu of grading the property. Staff has had a good working relationship with the church during the construction of the trail and recommends that this amendment be approved. DE June 9, 2004 (3:01 PM) AMENDED EASEMENT AGREEMENT THIS AMENDED EASEMENT AGREEMENT, made as of the day of 2004, by and between the Memorial Baptist Church (herein called "Grantor"), and the City of Grapevine, Texas, (herein called "Grantee"). This Amended Easement Agreement amends in its entirety and replaces the Easement Agreement previously executed between the parties hereto. In consideration of the covenants and agreements hereafter reserved and contained on the part of Grantee to be observed and performed, the Grantor grants to Grantee a non-exclusive easement and right-of-way (the "Easement") in, over, across, under, below, and along the following described twenty-five (25) foot wide parcel of land (the "Easement Area") situated in Tarrant County, Texas, as more particularly described on Exhibit A attached hereto and made a part hereof and as generally shown on the schematic drawing attached hereto and made a part hereof as Exhibit A-1, for purposes of the construction, installation, operation, inspection, maintenance, repair, reconstruction, and replacement of a pedestrian and bicycle path. Notwithstanding any provision hereof to the contrary: (A) the Easement will run initially for a thirty (30) year term and will be extended automatically for additional like thirty (30) year terms unless one of the parties notifies the other party in writing during the last twelve (12) months of the initial term or subsequent term that it is terminating the easement; and (B) the Easement and rights of ingress and egress granted hereby are granted expressly subject to the following rights hereby reserved to Grantor, for itself and for any and all future owners of the Easement Area and land adjoining the Easement Area: (i) the right to otherwise use and enjoy the Easement Area, including but not limited to the right to use and enjoy the surface of the Easement Area for installing landscaping, irrigation systems and fences, for passage of pedestrian and vehicular traffic, and to construct and maintain paving on the surface of the Easement area where required for the purpose of such reserved uses; and (ii) the right to grant such other easements as Grantor deems desirable in, over, under, upon, through, or across the Easement Area, provided such use and easements stated above shall not interfere with the easements and right-of-way and other rights and privileges granted hereby. 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: 3000 William D. Tate Avenue Grapevine, Texas 76051 (b) Grantee's Address: P.O. Box 95104 Grapevine, Texas 76099 2. TAXES. Grantee shall pay real property ad valorem taxes, if any, against the Easement, accruing as of the commencement date of the Easement. 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. Grantee covenants that it shall: 4.1. Maintain and regularly (at least weekly) clean and remove trash for the Easement Area and adjacent property owned by Grantee so as to maintain the Easement Area and adjacent property owned by Grantee in a clean and attractive condition; 4.2. Pay Grantor the sum of $40,000.00 in consideration for the granting of this Easement. 4.3. 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; 4.4. Comply with the terms and conditions set herein relating to the use, operation, and maintenance of the Premises; 4.5. Give to Grantor prompt written notice of any accident, fire, or damage occurring on or to the Premises; 4.6. 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 Grantee'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 4.7. Grantee shall install and maintain landscaping and fencing, or other alternative barrier as determined by both parties, in areas deemed necessary by the Grantor. 4.8. Not interfere with Grantor's use and enjoyment of its Property, which is adjacent -to the Easement Area. 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. Grantee shall indemnify Grantor and its members, trustees, agents, officials, officers, employees and attorneys, defend and indemnify from and against any 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 by any act, occurrence or commission of Grantee, its agent, licenses, contractors, customers or employees, also including any act of Grantor, including the negligence of Grantor. 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. The duty to defend and indemnify also applies to any lien action filed against Grantor involving the Premises. 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 Premises as provided by this Section. 10. EVENT OF DEFAULT. The occurrence of the following shall, constitute an event of default hereunder: 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 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 10 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, and shall also remain obligated to Grantor under Section 6; 6.1. 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. Y 14. NO 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 or equitable remedy terminate this Easement and vacate the Premises. 14.2 Grantee shall be in exclusive control 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, subject to the retained rights of 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 i 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. Grantee shall not have the right to assign this Easement Agreement to any other party without the written consent of Grantor. 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 If to Grantor: Memorial Baptist Church 3000 William D. Tate Avenue Grapevine, Texas 76051 Attention: Jerry Evans, Administrator With copies to: Harris, Finley & Bogle, P.C. 801 Cherry Street, Suite 1675 Fort Worth, Texas 76102 Attention: Ken Adair 20. VENUE Grantor and Grantee agree to venue in Tarrant County, Texas. Executed this day of Grantee: City of Grapevine, Texas A -- Roger Nelson Grantor: Memorial Baptist Church L -OZ STATE OF TEXAS § § COUNTY OF TARRANT § This instrument was ACKNOWLEDGED before me, on the day of , 2004, b Notary Public, State of Texas My Commission Expires: Printed Name of Notary Public STATE OF TEXAS § COUNTY OF TARRANT § This instrument was ACKNOWLEDGED before me, on the day of 1 2004, by My Commission Expires: Notary Public, State of Texas Hrinted Name of Notary Public H:\Boyle-Lowry\Grapevine\gv-easements\gv-esmnt amended agr-memorial baptist church.doc