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Ord. 1203 02-28-05ORDINANCE NO. 1203 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, ADOPTING GUIDELINES AND FORMS ASSOCIATED WITH THE CITY'S CONSENT TO ENCROACHMENTS INTO EASEMENTS AND RIGHTS -OF -WAY. WHEREAS, the City frequently receives request from property owners for waivers of encroachments into platted easements or rights -of -way, and; WHEREAS, the City has developed an administrative procedure for processing such requests without the need for seeking City Council approval; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. The Consent to Encroach Guidelines and Agreement more accurately described in Exhibits "A" & "B" attached hereto, are hereby approved. Section 2. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid, unconstitutional or otherwise unenforceable by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. Section 3. Effective Date. This Ordinance shall become effective immediately upon its passage and approval by the City Council. PASSED and APPROVED ON FIRST READING t the 14th day of February , A. D., 2005. TOM REID MAYOR ORDINANCE NO. 1203 PASSED and APPROVED ON SECOND AND FINAL READING this the 28th day of February , A. D., 2005. ATTEST: RETAR • APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY 2 TOM REID MAYOR EXHIBIT CONSENT TO ENCROACH GUIDELINES %A 1. Review Schedule: The review schedule begins when the application for consent to encroach is applied for and the processing fee is paid. 2. A sealed survey of the property certified by a professional public surveyor, licensed to do work in the State of Texas, must be furnished to the City by the property owner (at their expense) before a field investigation is authorized. 3. Field investigation by City Inspector 4. Submission of a written report to the Public Works Director by the City Inspector. 5. Applicant must provide the City with a letter from each utility company, that has a right to use the subject easement, acknowledging and accepting the encroachment. 6. The Public works Director either consents to the encroachment or rejects the application. If accepted, the City Manager shall execute a Consent to Encroach on the City's behalf. If rejected, the property owner may, within ten (10) working days from the date of rejection, file an appeal with the City Council. REQUEST FOR CONSENT TO ENCROACH LOT NO. BLOCK NO. ADDITION STATE OF TEXAS § § TO THE HONORABLE CITY COUNCIL COUNTIES OF BRAZORIA § FT. BEND HARRIS I, hereby request consent to encroach on the property located at In the City of Pearland, as shown to scale on the attached site plan (survey), two (2) copies attached. Respectfully submitted, (Signature) (Address) (Telephone No.) CONSENT TO ENCROACH AGREEMENT STATE OF TEXAS COUNTY OF WHEREAS, § § § (hereinafter referred to as the "Owner") is the owner of the following described property situated in County, Texas: WHEREAS, the Owner owns a structure within or encroaching upon the area of said easement, as shown on the plat attached hereto as Exhibit "A" and made a part hereof, and has requested that the City of Pearland, Texas ("City") give its consent to said encroachment; and WHEREAS, the Owner has informed the City that it has or will obtain consent or consent from any other utilities or entities having an interest in or jurisdiction over said easement; NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that, subject to all terms and conditions hereof, the City hereby consent to the maintenance by the Owner, its successors and assigns, of the following structure which is now an encroachment upon the area of said easement: said structure being located within the portion of said easement ("Encroachment Area") which is shown on Exhibit "A" attached hereto and made a part hereof. i This consent applies only to said structure as it now exists, and this consent shall not apply to said structure, or to any separately -usable part of said structure if: (1) it is hereafter destroyed, removed, structurally altered or (2) it is damaged to such an extent that it loses more than half of its value because of such damage. Nothing in this consent is intended to limit or to effect any of the City's regulatory or police powers, and it is the responsibility of the Owner to comply with all applicable rules, regulations and ordinances of the City which arise out of the City's regulatory or police powers, including but not limited to the City's zoning, fence and building ordinances. This consent shall never be construed to be a variance, special exception, permit, ruling or order of any kind under or pursuant to any of said rules, regulations or ordinances, but instead, this consent relates solely the City's property rights with respect to the easement referred to above. Should any such variance, special exception, permit, ruling or order of any kind be required now or hereafter, it shall be the responsibility to the Owner to seek it separately. In consideration of the consent hereinabove provided, the Owner hereby binds itself, it successors, assigns and grantees, to indemnify and hold the City, it successors and assigns and their officers, agents, employees and contractors, harmless from all claims from injury to or death of any person or for damage to property arising out of or in any way connected with the construction or maintenance of said structure within said easement areas, or which injuries, deaths or damages would not have occurred but for the presence of said structure within the easement area, including injuries, death or damages caused by the joint negligence of the City, it successors or assigns, or their officers, agents, employees or contractors and any other party or parties, but excluding injuries, death or damages caused solely by the negligence of the City, its successors or assigns or their officers, agents, employees or contractors. The Owner agrees for itself and its successors, assigns and grantees, that if the City or its successors or assigns, shall at any time, in its sole discretion, determine that it is necessary to do so for the purpose of properly maintaining or installing facilities within such easement, it shall be privileged to remove or alter the above -mentioned structured, or any part thereof, and the City shall not be obligated in any manner to restore the above -mentioned structure so altered or removed, but that any restoration shall be made by the Owner at its sole cost and expense; and the Owner further agrees, for itself and its successors, assigns and grantees, to pay the cost of all additional expenses incurred by the City in the proper maintenance or installation of its facilities, which additional expenses would not have occurred but for the presence of said structure within the easement area. The Owner for itself, its successors, assigns and grantees hereby releases the City, its successors and assigns and their officers, agents, employees and contractors, from any and all liability for damage caused to the above -mentioned structure by any such removal or alteration and further agrees to pay the City, its successors and assigns, the cost of removing or altering such structure upon receipt of its billing therefor. The Owner for itself, its successors, assigns and grantees, hereby further releases the City, it successors and assigns, and their officers, agents, employees and contractors from any and all liability for loss of or damage to such structure or any other real or personal property which may be caused by, result from, or be related to, the presence or malfunctioning of its facilities within the easement and regardless of whether their negligence may contribute to such loss or damage. The Owner further agrees for itself, its successors, assigns, and grantees, that if the City, it successors or assigns, shall at any time, and because of the presence of such structure within the area of said easement, be ordered by any public authority having jurisdiction to remove or relocate its facilities, it shall be privileged to comply with such order at the Owner's cost, unless the Owner, its successors, assigns or grantees, shall alter or remove said structure to the satisfaction of such public authority upon reasonable notice to do so, and if such facilities are removed or relocated by the City, its successors or assigns, the Owner for itself, its successors, assigns and grantees, agrees to pay the cost thereof upon the receipt of its billing therefor. The exercise and enjoyment by the Owner's successors, assigns and grantees of the rights and privileges to which the City has herein acquiesced shall constitute affirmative acceptance by such successors, assigns and grantees of the terms and conditions herein contained; provided, however, that the City for itself, its successors and assigns, hereby reserves the right to require that any such successors, assigns, or grantees further signify, in a recordable instrument, acceptance of such terms and conditions, and should any such successor, assign, or grantee refuse upon written request to execute such instrument, the rights and privileges herein acquiesced to shall thereupon automatically terminate. This Consent shall not inure to the benefit of any person other that the above - named Owner, its successors, assigns and grantees, or to the benefit of any property other than the above -described property. This Consent shall not take effect until it has been signed and acknowledged by the Owner, recorded in the appropriate real property records and delivered to the City. EXECUTED this the day of , 2005. CITY OF PEARLAND PROPERTY OWNER By: By: City Manager ACCEPTED AND AGREED TO this the day of 2005 STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on this day of , 2005, by , as of the City of Pearland, Texas Notary Public, State of Texas My Commission Expires: STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on this day of , 2005, by Notary Public, State of Texas My Commission Expires: