Ord. 1072 2002-09-23ORDINANCE NO. 1072
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, WAIVING THE ENCROACHMENT OF LANDSCAPING
IMPROVEMENTS AND A GAZEBO INTO THE CITY'S RIGHTS -OF -WAY
OF MAGNOLIA ESTATES BOULEVARD IN THE CITY OF PEARLAND.
WHEREAS, the owner of the subject property has requested a waiver of
encroachment and acknowledges that such waiver extends until such time as the City
desires to gain access for any reason whatsoever to the City's interest in or on such
rights -of -way; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That the City of Pearland hereby waives the encroachment of
landscaping improvements and a gazebo into the City's rights -of -way of Magnolia
Estates Boulevard in the City of Pearland.
Section 2. This waiver is effective only to the extent of the encroachments
generally described herein and depicted in Exhibits "A", "B", & "C" attached hereto
and incorporated herein for all purposes.
Section 3. This waiver is further effective only upon the execution of the
Protective Covenants in a form acceptable to the City of Pearland.
Section 4. Declaration of Emergency. The Council finds and determines that
the need to regulate encroachments into the right-of-way inures to the benefit of the
public and, therefore, bears directly upon the health, safety and welfare of the
citizenry; and that this Ordinance shall be adopted as an emergency measure, and that
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ORDINANCE NO. 1072
the rule requiring this Ordinance to be read on two (2) separate occasions be, and the
same is hereby waived.
PASSED and APPROVED ON FIRST AND ONLY READING this the 23 day
of September , A. D., 2002. r _.
ATTEST:
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
2
ern
TOM REID
MAYOR
Exhibit "A"
Ordinance No. 1072
PROTECTIVE COVENANTS
MDE Properties, Inc. ("MDE") is the owner of record of a certain tract or parcel
of land generally located at the intersection of Magnolia Street and Magnolia Estates
Boulevard in the City of Pearland. The City of Pearland, a Municipal Corporation
organized and existing pursuant to the laws of the State of Texas ("City"), owns
rights -of -way in Magnolia Estates Boulevard.
City acknowledges and consents to the encroachment of landscaping
improvements and a gazebo into the City's rights -of -way of Magnolia Estates
Boulevard depicted in Exhibits "A" & "B." City's acknowledgment and consent is
specifically limited to the encroachments herein described, and as described in the
Ordinance waiving encroachment, and no additional encroachment of any nature
whatsoever shall be construed as having been consented to herein.
MDE DOES HEREBY RELEASE, ACQUIT, AND FOREVER DISCHARGE CITY, ITS
OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS FROM ANY AND
ALL CLAIMS, DEMANDS, RIGHTS OR CAUSES OF ACTION OF WHATSOEVER
CHARACTER OR NATURE ARISING FROM OR BY REASON OF ANY AND ALL BODILY
OR PERSONAL INJURIES, INCLUDING DEATH AND MENTAL ANGUISH, DAMAGE TO
PROPERTY AND THE CONSEQUENCES THEREOF WHICH MAY BE SUSTAINED BY
MDE, MDE'S SUCCESSORS OR ASSIGNS, OCCURRING IN CONNECTION WITH THE
HEREINABOVE REFERENCED ENCROACHMENT INTO THE CITY'S RIGHTS -OF -WAY,
AND WHICH ARE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF CITY,
ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS. MDE SHALL
KEEP AND HOLD HARMLESS CITY, ITS OFFICERS, AGENTS, EMPLOYEES,
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SUCCESSORS, AND ASSIGNS FROM ANY AND ALL COST, LIABILITY, DAMAGE OR
EXPENSE OF ANY NATURE AND HOWSOEVER CAUSED, CLAIMED OR RECOVERED
BY ANYONE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR PERSONS
OR DAMAGE TO OR DESTRUCTION OF PROPERTY CAUSED BY OR RESULTING
FROM THE NEGLIGENCE OF CITY, ITS OFFICERS, AGENTS, EMPLOYEES,
SUCCESSORS, OR ASSIGNS ARISING IN CONNECTION WITH THE HEREINABOVE
REFERENCED ENCROACHMENT, TO THE EXTENT ALLOWED BY LAW. IT IS THE
EXPRESSED INTENTION OF BOTH MDE AND CITY THAT THE INDEMNITY PROVIDED
FOR IN THIS SECTION IS INDEMNITY BY DISTRICT TO INDEMNIFY AND PROTECT
CITY FROM THE CONSEQUENCES OF THE NEGLIGENCE OF CITY, ITS OFFICERS,
AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS WHETHER SUCH NEGLIGENCE
BE SOLE, JOINT, OR CONCURRENT, ACTIVE OR PASSIVE. THE PROVISIONS OF
THIS SECTION SHALL SURVIVE THE TERMINATION, EXPIRATION, OR CANCELLA-
TION OF THIS AGREEMENT.
City expressly reserves the right, and MDE expressly acknowledges and
consents to this right, to remove without liability therefor, any material or structure
contributing to the encroachments acknowledged herein, should such removal be
desirable in order for the City to gain access for any reason whatsoever to the City's
interests in or on such rights -of -way. The parties hereto expressly agree that City shall
in no way be liable for any removal and/or damage done to such materials and/or
structures. Furthermore, the parties hereto specifically agree that City shall under no
circumstances be under any duty or responsibility to restore any materials and/or
structures so removed and/or damaged.
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The conditions and covenants are hereby declared to be covenants running with
the land and shall be fully binding upon all persons acquiring any interest in the
property described herein, whether by descent, demise, purchase, gift, or otherwise.
ACCEPTED and AGREED to this the 23rdday of September , 2002.
CITY OF PEARLAND
r
By:
Bill risen
City Manager
MDE Properties, Inc.
OWNER
By:
Printed Name. ,);,G :►.! v,/-��t-tT
Title: O s-Tdc.CR
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THE STATE OF TEXAS
COUNTY OF -)," Z
BEFORE ME, the undersigned Notary Public, on this day personally appeared
-j; / / 1,7.5 , known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he/she executed
the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS t DAY OF
e__- , A.D.,-2 9 % ' ,
PE;LA N. LEHMAN
tort' Public, State of Texas
My Cervv;nisdion Expires:
APRIL 2, 2005
THE STATE OF TEXAS
COUNTY OF
0�
NOTARY PUBLIC, STATE OF TEXAS
Commission Expires:
/0 / ` `) °as
Printed Name:
BEFORE ME, the undersigned Notary Public, on this day personally appeared
Se , known to me to be the person whose name is
subscribed to thd'foregoing instrument and acknowledged to me that he/she executed
the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS I DAY OF
v..)A,( , A.D., 2007 ,)OOy
i
star►,,,
;._,; - MELISA DURHAM
Notary Public, State of Texas
•., My Commission Expires
"` °' December 12, 2007
4
NOTARY PUBLIC STATE OF TEXAS
Commission Expires: )DiG fyi
Printed Name: he I i5c...DtAckttlyv
Sort ay: MOE properties Inc;
713 993 0418;
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ert By: MCE Properties Inc; 713 993 0418;
FROM : LANDSCAPE OFFICE
Jul-25-02 9.00AM; Page 5/5
FAX NC. : 2E13619063 Jun. 13 2002 12:11AM Pi