HomeMy WebLinkAboutEncroachment AgreementSTATE OF TEXAS
COUNTY OF BRAZOS
ENCROACHMENT AGREEMENT
Line No.: 151017
Tract No.
This instrument made and entered into this _ day of 2012, by and between
ETC Texas Pipeline, Ltd., a Texas limited partnership, (hereinafter referred to as "ETC"), with principal
offices at 711 Louisiana, Suite 900, Houston, Texas 77002-5600, and CITY OF COLLEGE
STATION hereinafter referred to as the "College Station" whether one or more), whose mailing address
is P.O. Box 9973 College Station, Texas, 77842-8083.
WITNESSETH:
THAT WHEREAS, ETC is the holder of an Easement granted by Esther M. Dansby, executed on
January 18, 1981 (the "Easement") covering the following described premises in Brazos County, Texas:
Being 202.655 acres, more or less, in The Robert Stevenson League, A-54, Brazos County, Texas,
and being a portion of that certain 300 acres more fully described in a Partition Deed dated May
31, 1940, recorded in Volume 103, Page 547, Deed Records of Brazos County, Texas, the said
202.655 acre tract being more particular described on (hereinafter referred to as the "Premises");
WHEREAS, pursuant to the authority contained in said Easement, ETC has constructed and
currently operates and maintains a 8-inch pipeline, (hereinafter referred to as the "ETC Pipeline
Facilities"), across and through the above described Premises; and
WHEREAS, College Station is the present owner of the following described real property, upon
which the ETC Pipeline Facilities are situated, in Brazos County, Texas (hereinafter referred to as the
"Owned Premises"):
See Exhibit "A" attached hereto and made a part hereof for a description of the Owned Premises
WHEREAS, College Station plans to install and construct a 6 foot wide sidewalk, (hereinafter
referred to as the "Encroachment") upon ETC's 50-foot right-of-way width (hereinafter referred to as the
"Easement Area"), and such Encroachment is depicted on Exhibit 'B" which is attached hereto and made
a part hereof; and
WHEREAS, College Station has been advised by ETC that ETC owns and operates a natural gas
pipeline; and
WHEREAS, College Station has requested permission from ETC to maintain, use, and enjoy the
Encroachment upon a portion of the Easement; and
WHEREAS, ETC is willing to grant such permission upon the terms and conditions set forth as
follows.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions hereinafter
set forth, the parties hereto agree as follows:
1. ETC hereby grants permission to College Station to maintain, operate and use the
Encroachment, subject to the following conditions:
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A. College Station assumes all risks for damages, injuries, or loss to either property or
persons, who may be incurred by College Station or its agents, invitees, or licensees
present on or in the vicinity of the Easement Area and in any way associated with said
Encroachment. Any maintenance or improvements to or repairs of the Encroachment shall
be the sole responsibility, and performed at the sole cost and expense, of the College
Station.
B. The permission granted herein is limited exclusively to the Encroachment within the
Easement Area. College Station shall not alter, or permit the alteration of, the grade of the
Easement Area without the prior express written consent of ETC. College Station shall be
solely responsible for, and shall bear the expense of repairs attributable to, any loss of
subjacent or lateral support for ETC's Easement Area and/or the ETC Pipeline Facilities
caused by the Encroachment.
C. College Station shall at all times conduct all of their activities within the Easement Area in
such a manner as not to interfere with or impede the operation, safety, or maintenance of
the ETC Pipeline Facilities and activities in any manner whatsoever. In the event that
ETC, in its sole discretion, determines that the safety, operation, or maintenance of the
ETC Pipeline Facilities is affected by the Encroachment, College Station shall, at ETC's
option and to ETC's satisfaction, either resolve the situation or reimburse ETC for its costs
incurred in resolving the situation, including but not limited to lowering or relocating the
ETC Pipeline Facilities.
D. College Station shall not plant any trees within the Easement Area.
E. College Station shall construct and maintain said Encroachment as shown on Exhibit "B".
2. College Station agrees to indemnify, protect, and hold ETC, its parent, affiliates, subsidiaries,
and their directors, officers, employees, representatives, and agents harmless from and against any and all
actions or causes of action, claims, demands, liabilities, loss, damage, injury, suit, proceeding, judgment,
cost (including the cost or expense of environmental response, removal or remediation activities) or
expense of whatever kind or nature, including but not limited to reasonable attorneys' fees, arising from:
(1) noncompliance with any laws, regulations and orders applicable to the ownership or the operation
and maintenance of the Encroachment within the Easement Area described herein; (2) any incidents,
acts, releases, negligence, transactions or omissions, or conditions on or affecting the Easement Area that
would (i) contribute to or constitute a violation of any local, state or federal environmental rule,
regulation, law or judicial order, (ii) result, in whole or in part, in any requirement to clean up or
otherwise remedy or remediate a condition, (iii) give rise to any lien, liability, injunction, order,
restriction, claim, expense, damage, fine or penalty, or (iv) adversely affect human health or the
environment at or near the Easement Area; and (3) any incident, act, action, cause of action, negligence,
transaction, or omission or in connection with, or incidental to the construction, operation, maintenance,
presence, or use of the Encroachment, except where such loss, cost, liability, or expense was proximately
caused solely by the gross negligence of ETC, its employees or agents.
3. College Station agrees that protection of the ETC Pipeline Facilities will be maintained at all
times.
4. Should ETC desire to remove any portion of the Encroachment within the Easement Area in
order to construct, maintain, operate, repair, replace, remove, or resize ETC's existing or additional
Pipeline Facilities, College Station or its successors and assigns, shall pay the cost of removing and
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replacing or reinstalling such removed portion of the Encroachment. In addition, all repair and
maintenance work performed by ETC on its existing or additional Pipeline Facilities located on the
Owned Premises, shall be performed in a reasonable and workmanlike manner and ETC shall restore the
surface and grade of the Owned Premises where the work is performed, but shall not be liable for loss,
damage, or replacement to the Encroachment or any associated equipment and facilities that exist within
the Easement Area, and in this regard, College Station does hereby release ETC, its employees, agents,
officers, and directors from any and all liability for any such loss or damage.
5. The parties hereto understand that this Agreement in no way constitutes a waiver by ETC of its
rights to enjoy the Premises or the Easement Area unencumbered by the construction and operation of the
Encroachment.
6. It is expressly agreed to by and between the parties hereto that if College Station is in violation
of any terms or conditions set forth in this Agreement, ETC may at any time terminate this Agreement
upon ten (10) days' written notice to College Station. In the event of such termination, College Station
shall immediately remove any and all of said Encroachment, which may be situated on the Easement
Area, or if College Station fails to remove any and all of said Encroachment, ETC may, at its option,
remove said Encroachment at the expense of College Station and without any liability whatsoever. It is
further agreed that the failure by ETC to exercise such option as to any such violation shall not constitute
a waiver of ETC's future right to exercise such option as to the same or any future violation.
7. Upon the termination of this Agreement, College Station shall remove from the Easement Area
all of the Encroachment and restore the surface of the Easement Area to good condition and to ETC's
satisfaction, including the leveling and grading of all ruts, excavations, depressions and mounds caused
by, or resulting from, the Encroachment.
8. The provisions of the Easement, and all rights, powers, privileges, and duties, obligations, and
liabilities created thereby, remain in full force and effect and are not affected hereby except to the extent
and in the manner set forth above.
9. This Agreement may not be assigned by College Station, in whole or in part, without the prior
express written consent of ETC, which consent shall not be unreasonably withheld so long as any such
permitted assignee agrees to be bound by and to comply with all the terms and conditions of this
Agreement. Any assignment made in contravention of this provision shall be deemed null and void and
of no force and effect whatsoever.
This instrument and the covenants and agreements herein contained shall extend to and be binding
upon the heirs, executors, administrators, successors, and permitted assigns of the parties and the benefits
of this Agreement shall run with the land.
IN WITNESS WHEREOF, the parties have executed this instrument the day and year first above
written.
"ETC" "OWNER"
ETC TEXAS PIPELINE, LTD. CITY OF COLLEGE STATION
By: LG PL, LLC, its general partner
Sign:
Print Name:
Title:
Sign:
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STATE OF TEXAS §
COUNTY OF HARRIS §
The foregoing instrument was acknowledged before me on this day of
20 by Robert R. Rose, Vice -President — Land and Right of Way of LG
PL, LLC, its general partner of ETC Texas Pipeline, Ltd.
(SEAL)
Notary Public
My Commission Expires
STATE OF TEXAS §
COUNTY OF BRAZOS §
The foregoing instrument was acknowledged before me on this
20_ by
of the City of College Station.
(SEAL)
PROJECT NO.12178
This Instrument To Be Returned To:
Hope Acosta — Right of Way Dept.
ETC Texas Pipeline, Ltd.
711 Louisiana, Suite 900
Houston, Texas 77002-5600
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Notary Public
My Commission
day of