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HomeMy WebLinkAboutRES 93-250 i d RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to enter into an Easement Agreement with the Port of Beaumont Navigation District of Jefferson County for a twenty foot wide Easement corridor for storm water drainage facilities and a Maintenance/Construction easement that is an additional twenty feet on each side of the easement corridor. The contract is substantially in the form of Exhibit "A" attached hereto. PASSED BY THE CITY COUNCIL of the City of Beaumont this the day of �� , 1993. C,( - Mayor - s _ STATE OF TEXAS EASEMENT AGREEMENT COUNTY OF JEFFERSON § This Easement Agreement (the "Easement Agreement" ) is dated effective as of the day of , 199_, by and between the PORT OF BEAUMONT NAVIGATION DISTRICT OF JEFFERSON COUNTY, TEXAS, a political subdivision of the State of Texas (the "Grantor" ) , acting by and through its duly and legally authorized representatives, and the CITY OF BEAUMONT (the "Grantee" ) . RECITALS : A. The City of Beaumont has previously obtained property rights through easements, right-of-ways, and deeds to certain property within the City of Beaumont and within the port facilities operated by Grantor and upon which has been constructed storm water drainage facilities . B . Grantor, pursuant to a certain lease agreement dated as of December 11, 1991, between Grantor and Neches River Terminals, Inc . , a corporation duly incorporated and existing under the laws of the State of Delaware with its principal offices in Jefferson County, Texas ( "NRT" ) , has agreed to construct a new storm water drainage facility consisting of approximately 375 feet of 8-foot x 10-foot concrete box culverts, two concrete connectors to the existing 60-inch storm sewer facilities of the City of Beaumont, and two 4-foot storm water inlets with concrete pads (the "Facilities" ) . C. Grantor has agreed to grant and convey to Grantee a right-of-way and easement on, along, and in a strip of land across Grantor' s property where the Facilities have been constructed as described on the map attached hereto as Exhibit A and made a part hereof for all purposes and as further described by the metes and bounds description attached hereto as Exhibit B attached hereto and made a part hereof for all purposes (the "Easement Corridor" ) . D. Grantee has agreed to accept the dedication of the right- of-way and easement of the Easement Corridor and to release any property rights, including easements or rights-of-way in property previously dedicated to Grantee for existing or previously existing storm water drainage facilities crossing Grantor' s property. NOW, THEREFORE, for and in consideration of the recitals set forth above which are incorporated in this Easement Agreement as if fully set forth below, and in further consideration of the sum of TEN AND N01100 DOLLARS ($10 . 00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by Grantor and Grantee, and in further consideration of the covenants and agreements hereinafter set forth, Grantor and Grantee covenant and agree as follows : 1 EXHIBIT "A" 1 . Purpose of Easement . The right-of-way, easement, rights and privileges granted herein to Grantee by Grantor shall be used only for Grantee to alter, repair, change, remove, change the size of and replace any of the Facilities, including surface facilities such as catch basins . 2 . Location of Easement . Grantor hereby acknowledges that the Easement Corridor shall be restricted to that twenty foot (201 ) strip of land identified in the map on Exhibit A and to the metes and bounds description described on Exhibit B with the agreement that any conflicts between the two descriptions shall be resolved in favor of the metes and bounds description contained on Exhibit B. 3 . Maintenance/Construction Easements. Accompanying the grant and conveyance of the property rights in the Easement Corridor, Grantor further grants to Grantee the right to an additional twenty foot (201 ) strip on each side of the Easement Corridor for the purpose of maintaining, altering, repairing, changing, removing, changing the size of, and replacing any of the Facilities (the "Maintenance/Construction Easement" ) Grantor and Grantee acknowledge that including the Easement Corridor, the Maintenance/Construction Easement granted is a total sixty foot (601 ) strip of land. Prior to use of the Maintenance/Construction Easement, Grantee shall give ninety (90) days written notice to Grantor of its intention to use the Maintenance/Construction Easement provided that Grantor agrees that if emergency construction or repairs are necessary to the Facilities, then Grantee shall notify the Port in such a manner as not to unreasonably impede or hinder business activities of Grantee and may thereafter make use of the Maintenance/Construction Easement and make repairs as necessary to the Facilities . Grantee further agrees to expedite any maintenance, repairs, changes, removals, replacements, or other alterations to the Facilities, if and when such become necessary so that the business activities of the Port and its business invitees, licensees, and others making use of Port facilities is not unreasonably interrupted or impeded. Upon the completion of any altering, repairing, changing removing, changing the size of, and replacing any of the Facilities, Grantee shall replace and restore all fences, walls which may exist on the surface of the Easement Corridor and shall replace and restore any other structures which may exist on the surface of the Maintenance/Construction Easement, and Grantee shall also grant to Grantor reasonable compensation for any fences, walls or existing structures which may not be replaceable or for other facilities or property of Grantor that may be damaged or destroyed during the altering, repairing, changing, removing, changing the size of, and replacing of the Facilities . 4 . Secondary Easements . Accompanying this right is the further right in Grantee to enter and depart over and upon that portion of Grantor' s property as necessary to effect the purpose of 2 the easement herein granted, such rights of ingress and egress to be on a non-exclusive basis . Such rights shall also be exercised over such routes as may be directed by Grantor with the least practical damage or inconvenience to Grantor or to other parties operating or authorized to be in and upon the property of Grantor. This right is also conditioned on the reasonable exercise thereof for the benefit of the dominant tenement, and in the event of excessive use or use for non-dominant purposes, or use by means otherwise injurious to the servient state, Grantor will have the right to modify or extinguish this right . 5 . Rights Reserved to Grantor. Grantor shall have the right to use the Easement Corridor for purposes not inconsistent with Grantee' s full enjoyment of the rights hereby granted, provided that Grantor will not erect or construct any buildings or any structures or drill or operate any wells within the Easement Corridor. Grantor retains, reserves and shall continue to enjoy the use of the surface of the Easement Corridor for any and all purposes which do not interfere with and prevent the use by Grantee of the Easement Corridor, including the right to use and maintain the surface of the herein granted easement for drainage ditches and private streets, rail tracks, roads, driveways, alleys, walks and other like uses and for use of conveyoring facilities for bulk cargo handling facilities which are currently operated or may hereafter be operated on the Port facilities, and/or to dedicate all or any part of the surface of the property affected by this easement for such purposes not inconsistent with Grantee' s full enjoyment of the rights hereby granted. 6 . Conveyance of Facilities . As a part of the consideration for the granting of the easement and the right-of-way provided herein by Grantor to Grantee, Grantor does hereby grant and convey unto Grantee all right, title and interest in and to the Facilities; however, Grantor makes no warranties, either express or implied, as to such Facilities and Grantee accepts such as is and with all faults, and disclaims all express warranties other than the special warranty of title, all statutory warranties (other than as to title) , and all implied warranties with respect to the Facilities and as to any fixtures related to the Facilities, Grantor hereby disclaims all warranties of habitability, merchantability, or fitness for a particular purpose or use . 7 . Release of Prior Easement Rights . In consideration for the granting of the right-of-way easement rights and privileges as herein specified, Grantee does hereby release all of its right, title, and interest in any property rights, including easements and rights-of-way, in property previously dedicated to the Grantee for existing or previously existing storm water drainage facilities crossing Grantor' s property in the immediate vicinity of the Easement Corridor. Grantee further agrees to execute and place in the Official Public Records of Real Property for Jefferson County, Texas, such documents as may be request by Grantor or as may be 3 necessary to evidence the release of property rights, including easements or rights-of-way in property previously dedicated to the Grantee for existing or previously existing storm water drainage facilities crossing Grantor' s property in the immediate vicinity of the Easement Corridor. 8 . Marking Easement . Grantee shall have the right to mark the location of the Easement Corridor and any of its Facilities by suitable markers set in the ground or on its conveyor system, but such markers when set in the ground will be placed in fences or other locations which will not interfere or impede with any reasonable use that Grantor will make of its property adjacent to the Easement Corridor or with its reasonable use and rights of access maintained across the Easement Corridor. 9 . Limitations . The right-of-way, easements, rights and privileges herein conveyed to Grantee are limited to the erection, construction, reconstruction, replacement, removal, maintenance and use of the Facilities together with the operation of such trucks, tractors, trailers or heavy equipment that may be brought upon the Easement Corridor. Grantee will repair any damage caused by Grantee or by anyone in and upon the Easement Corridor on behalf of Grantee or working in conjunction with Grantee or its contractors for any damage to Grantor' s property within or outside the Easement Corridor, including damage to drainage ditches and private streets, roads, driveways and other like improvements in and upon Grantor' s property. Grantee further agrees to indemnify Grantor against any loss or damage which may be caused by the exercise of Grantee' s rights to enter and depart or by any wrongful negligent act or omission of Grantee or of any of its agents, employees or business invitees . 10 . Duration of Easement . The right-of-way, easements, rights and privileges granted hereunder shall remain in force and effect for so long as Grantee, its successors or assigns shall construct, operate, use, and maintain the Facilities . Grantor hereby binds itself, its successors and assigns to warrant and forever defend the above-described easement and rights to Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, subject to existing driveway or use rights . 11 . Liability of Grantee . Grantee agrees that it shall not authorize any person to enter or go upon the Easement Corridor except bonafide employees, servants, or agents of Grantee or Grantee' s independent contractors actually engaged in operations necessary for the enjoyment by Grantee of the rights hereby granted. Insofar as the rights of Grantor, its successors and assigns, Grantee shall be responsible and liable for all damages caused by any employee, servants, or agents of Grantee, or Grantee' s independent contractors entering in and upon the Easement Corridor for the purpose of performing any part of the operations 4 necessary for the enjoyment of Grantee of the rights herein granted, and such shall extend to any servant, employee, or any other person entering with the permission of any such independent contractor. 12 . Covenants Running with the Land. All covenants, agreements, rights, easements, privileges, obligations, and duties contained in this Easement Agreement shall be covenants running with the Property affected hereby and the provisions hereof shall be binding upon. each owner, its successor and assigns, and any future owner or owners . 13 . Approval of Notices . Any notices required to be given herein shall be given in writing to Grantor and Grantee at the addresses stated below or at such other place as Grantor and Grantee may, from time to time, specify: If to Grantor: Mr. Roger Heath, Director Administration and Finance Port of Beaumont Post Office Drawer 2297 Beaumont, Texas 77704 (409) 835-5367 Fax No. (409) 835-0512 If to Grantee : Mr. Ray Riley City Manager City of Beaumont Post Office Box 3827 Beaumont, Texas 77704 (409) 880-3708 Fax No. (409) 880-3712 14 . Termination of Easement . The easements, rights and privileges granted hereunder shall terminate upon the occurrence of an Event of Default as defined in the Lease Agreement executed between Grantor and Grantee, or at such time as the purposes for which the purposes of this easement grant cease to exist or are abandoned by Grantee or become impossible to perform. Should Grantee fail to perform any covenant, undertaking or obligation arising hereunder, all -rights and privileges granted hereby shall terminate and this Easement Agreement and the right granted hereunder shall be of no further force and effect, except for indemnity obligations of Grantee to Grantor. 15 . Entire Agreement . This instrument contains the entire agreement between Grantor and Grantee relating to the rights herein granted and the obligations herein assumed. Any oral representations or modifications concerning this Easement Agreement shall be of no force and effect except a subsequent modification, in writing, signed by Grantor and Grantee. 5 16 . Attorney' s Fees . In the event of any controversy, claim or dispute relating to this Easement Agreement or any breach thereof, the prevailing party shall be entitled to recovery from the losing party, reasonable expenses including reasonable attorneys' fees and court costs . 17 . Binding Effect . This Agreement shall be binding upon and inure to the benefit of Grantor and Grantee, their personal representatives, successors and assigns . 18 . Non-Assignable . Neither party hereto shall assign, transfer or otherwise dispose of this Agreement or any of its rights, interest or obligations hereunder without the other party' s consent which consent shall not be unreasonably withheld. Dated GRANTOR: PORT OF BEAUMONT NAVIGATION DISTRICT OF JEFFERSON COUNTY, TEXAS By W. R. Kimbrough, President Board of Port Commissioners ATTEST/SEAL: B . G. Masters, Port Director and Secretary to Board of Port Commissioners 6 Grantee hereby acknowledges and approves the foregoing Easement Agreement executed by Grantor for the benefit of Grantee and acknowledges and agrees that such complies with the requirements for providing of an Easement Corridor by Grantor to Grantee in accordance with the terms of that certain Lease Agreement described herein. Dated: GRANTEE: CITY OF BEAUMONT By: Name Title ATTEST/SEAL: Secretary (Affix Corporate Seal Here) 7 STATE OF TEXAS ) COUNTY OF JEFFERSON ) BEFORE ME, the undersigned, a Notary Public, on this day personally appeared , known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said PORT OF BEAUMONT NAVIGATION DISTRICT OF JEFFERSON COUNTY, TEXAS, a political subdivision, and that he executed the same as the act of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 1992 . Notary Public in and for the State of Texas My Commission Expires (Type or print name of Notary) 8 STATE OF TEXAS ) ) COUNTY OF JEFFERSON ) BEFORE ME, the undersigned, a Notary Public, on this day personally appeared , known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said CITY OF BEAUMONT and that he executed the same as the act of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 1992 . Notary Public in and for the State of Texas My Commission Expires (Type or print name of Notary) 7023 9 SUBJECTI EASEMENT' AGREEMENT BETWEEN THE CITY G. =i`........ . BEAUMONT AND THE `�'.' j PORT OF BEAUMONT NAVIGATION DISTRICT OF JEFFERSON COUNTY DAVID BROWN SURVEY OuroIt ABSTRACT S t = �rF s w a© inbGq goof (� J - i Ir ob � d = � Q V0RANT EXHIBIT A L OCATI ON MAP N.T.S. .r,�aaa Z g fU V? v n n PORT OF BEAUMONT EXIST. FENCE > > or v o W m _ X On r CHIP STORAGE c y m W X �FACDLITY X y = m� zW G 2 i IERINNir�a �IRK X .0 INTERSECTION OF OLD EXISTING ~ 60' RCP 47 32. E 6%34 �0'E c N 3. .4 145,00 60' CMP X � _ OLD LINE N 4'30'34 4 cq 04.13' EXISTING 60' RCP 134.42' N 0.28'36' E ob 60• RCP COLD) Z N bX 1t.OF PROPOSED EASEMENT a. zm N m3 v _ 4L31Y n z X ` r EXHIBIT "B" EASEMENT CORRIDOR BEING a twenty foot (20 . 01 ) wide easement out of and a part of that certain tract or parcel of land out of the David Brown League, Abstract 5 in the City of Beaumont, Jefferson County, Texas, and being out of and a part of the same tract of land that was conveyed by Joe E. O' Fiel to the Port of Beaumont Navigation District of Jefferson County by deed dated April 22, 1986 and recorded under Film Code 101-40-0336 in the Deed Records of the County Clerk of Jefferson County, Texas, the centerline of the said easement being described more particularly by metes and bounds as follows : BEGINNING at a City of Beaumont monument located at the centerline intersection of Carroll Street and Buford Street; THENCE South 89 degrees 58 minutes 00 seconds West along the centerline of Buford Street a distance of 754 . 52 feet to a point; THENCE North 17 degrees 29 minutes 39 seconds West a distance of 13 . 89 feet to a point, said point being center of a manhole and being on the centerline of the 10 foot x 8 foot concrete box culvert and the POINT OF BEGINNING of said easement; THENCE North 01 degree 26 minutes 43 seconds West a distance of 48 . 30 feet to a point; THENCE North 04 degrees 30 minutes 34 seconds East a distance of 134 .42 feet to a point; THENCE North 43 degrees 05 minutes 20 seconds East a distance of 69 . 54 feet to a point; THENCE North 05 degrees 47 minutes 42 seconds East a distance of 145 . 00 feet to a point, being the end of a 10 foot x 8 foot concrete box culvert, and the beginning of a 60 inch reinforced concrete pipe; THENCE North 42 degrees 44 minutes 00 seconds West 80 . 00 feet to the intersection with the existing 60 inch reinforced concrete pipe; THENCE North 00 degrees 28 minutes 36 seconds East 404 . 15 feet to the south bank of the Neches River Turning Basin and the end of the said easement . MAINTENANCE/CONSTRUCTION EASEMENT The Maintenance/Construction Easement shall be adjacent to and twenty feet (20 . 01 ) on either side of the above described Easement Corridor.