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R94-46 08-08-94RESOLUTION NO. R94-46 RESOLUTION AUTHORIZING THE CITY EAGER, SUBJECT TO CERTAIN CHANGES AND MODIFICATIONS TO THE ATTACHED EXHIBIT, TO EXECUTE ON BEHALF OF THE CITY ANAGREEMENT TO DONATE LAND FOR THE CITY OF PEARLAND CENTENNIAL BOULEVARD BY AND BETWEEN THE CITY, AS GRANTEE, AND STUART DISSEN AND GLADYS DISSEN, INDIVIDUALLYAND AS CO-TRUSTEES OF THE W. J. DISSEN, JR. MARITAL TRUST, AS GRANTORS. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND THAT: 1. Attached hereto and incorporated herein by reference, there is an AGREEMENT TO DONATE LAND FOR THE CITY OF PEARLAND CENTENNIAL BOULEVARD, by and between the City, as Grantee, and Stuart Dissen and Gladys Dissen, Individually and as Co-Trustees of the W. J. Dissen, Jr. Marital Trust, as GRANTORS, which is acceptable to the City. The City finds that the contractual provisions regarding cost of surveying, fencing and the aggregate amount of fees (rezoning application processing fees directly associated with the proposed rezoning of land adjacent to the donated tract made the basis of this agreement) required to be waived by the City in the attached AGREEMENT TO DONATE LAND FOR THE CITY OF PEARLAND CENTENNIAL BOULEVARD involve a nominal amount and do not exceed, in the aggregate, the fair market value of the right-of-way to be acquired, if it were necessary to pay for the acquisition that the City is to receive without cost. Therefore, such expenditures and the waiver of fees are approved under these circumstances only. Nothing herein shall waive any impact fees, platting fees, building permit fees or any fees or charges other than those incidentally associated with a rezoning application, nor 1 shall it permanently waive fees or charges for future applications for rezoning. Furthermore, the City cannot and will not contract to rezone in order to obtain a municipal benefit. It can and will agree to waive these fees under these circumstances. The City can agree to consider the rezoning, but the rezoning shall be judged by the usual standard: the highest and best use of the property, which may or may not be consistent with the rezoning requested by the GRANTORS. 2. The City Manager is authorized and instructed to execute on the City's behalf the AGREEMENT TO DONATE LAND FOR THE CITY OF PEARLAND CENTENNIAL BOULEVARD attached hereto and incorporated herein by reference and to execute whatever other documents are necessary to accomplish closing and carry out the intents and purposes of this agreement. AND IT IS TO ORDERED. PASSED and APPROVED this the J day of ~~ , A. D., 1994. ATTEST: Pat Jones, ry, TRMC APPROVED AS TO FORM: nterim City Attorney AG~ R~GARDING DONATION OF LAND This Agreement Regarding Donation of Land (this "Agreement") is by and between Smart Dissen and Gladys Dissen, individually and as co-trustees of the W. J. Dissen, Jr. Marital Trust ("Grantors") and the City of Pearland, Texas ("Grantee"). WITNESS ETH: WHEREAS, Grantors own that certain tract or parcel of real property situated in Brazoria County, Texas, as more fully described on Exhibit A attached hereto and made a part hereof for all purposes (the "Property"); and WHEREAS, Grantee desires to construct a concrete four lane divided roadway having two 28 foot pavements of two lanes each (the "Proposed Roadway"), which road shall be located and constructed in accordance with the Thoroughfare Plan attached hereto as Exhibit B and made a part hereof for all purposes; and WHEREAS, Grantee has requested that Grantors grant to Grantee a right-of-way over and across that portion of the Property along the boundary of the Property from F.M. 518 to Clear Creek 65 feet in width and 3,884.53 feet in length (the "Right-of-Way"); WHEREAS, Grantors are willing to grant the Right-of-Way to Grantee on the terms and conditions contained herein; WHEREAS, Grantors are willing to execute a "Full Donation" agreement in a form approved by Grantee and by the Texas Department of Transportation for use by condemning authon'ties in circumstances where condemnation, appraisal, and payment of fair market value for a taking for public purposes is waived by the landowner; and WHEREAS, Grantee wishes to accept such a gift and full donation and is willing to pay the cost of surveying, staking, and fencing. NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: THAT, for and in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged and confessed, Grantors and Grantee have agreed and do hereby agree as follows: 1. Grant of Right-of-Way. So long as Grantee fully and timely complies with aH of its obligations under this Agreement and once all conditions precedent described herein have occurred to Grantors' satisfaction, Grantors hereby agree to grant the Right-of-Way to Grantee as a donation, at no cost to the Grantee, save and except the cost of surveying, staking, and fencing. Grantee, at its sole cost and expense, shall cause the Right-of-Way to 0285742.05 be surveyed and staked within thirty (30) days after the date of this Agreement. Grantors shall execute and deliver to Grantee a Special Warranty Easement Gift Deed (the "Donation Deed") containing as a description of the Right-of-Way the metes and bounds derived from the survey to be performed and staked. The grant of the Right-of-Way and all documents executed in connection therewith shall except and reserve unto Grantors all oil, gas and other' minerals located in, on or under the Property, including, without limitation, that portion of the Property encumbered by the Right-of-Way. In the event the Proposed Roadway is not fully and finally completed in substantial compliance with the Thoroughfare Plan within four (4) years from the date of this Agreement, the parties hereto expressly agree that Grantors shall be entitled to receive, as grantees, following written request to Grantee, as grantor therefor, a Special Warranty Easement Deed from Grantee, covering the same described property which was conveyed to Grantee by the Donation Deed, pursuant to the terms of this Agreement. In the event the Right-of-Way reverts to Grantors pursuant to this provision, Grantee agrees to and shall execute any document or documents necessary or desirable to effectuate and/or evidence such reversion. In the event of such reversion, Grantee agrees to and shall indemnify, defend and hold Grantors harmless from and against any and all claims, demands, suits, judgments, costs, losses and expenses (including, without limitation, attorneys' fees, accountants' fees, consultants' fees, court costs and interest) arising out of or incurred during Grantee' s ownership and use of the Right-of-Way, including, without limitation, tax liabilities and assessments on the property covered by the Right- of-Way incurred during or resulting from Grantee' s ownership and use of the Right-of-Way. 2. Waiver of Fees and Assessments. In the event that Grantee charges or is permitted to charge a fee for a change of the zoning classification of the Property, such fee shall be waived in connection with any rezoning apph'cation made by Grantors concerning all or any part of the Property if Grantors own that part of the Property with regard to which a rezoning classification is sought at the time of the application therefor. Nothing contained herein is intended to be or shall be construed as an obligation on the part of Grantee to grant any rezoning application concerning all or any part of the Property. As of the date of this Agreement, Grantee knows of no action being considered that would materially change the current zoning classification of the Property in a manner which would adversely affect the Property. Nothing contained herein is intended to be or shall be construed as a waiver of any impact fee, building permit fee or similar fee associated with any future development of the Property. In addition, and as further consideration for the execution of this Agreement, Grantee has and does hereby waive the right to assess the Property for any costs incurred or to be incurred in connection with the construction and paving of the Proposed Roadway. 0285742.05 -2- 3. Refencing Cost. Grantee agrees, at Grantee's sole cost and expense, to erect and maintain a fence on the former property line of Grantors' property for, among other things, the protection of livestock and other living animals on the property, within a reasonable length of time (not to exceed sixty (60) days) after execution and delivery of the Donation Deed. Such fencing shall be performed in a good and workmanlike manner, using high quality materials suitable for their intended purpose. Upon commencement of construction operations on the Right-of-Way, Grantee may move the fencing to a location on the Right-of-Way of its choice; however, the fencing shall be maintained by Grantee to protect such animals and others throughout the process of construction on the Right-of-Way. During the period of time commencing with the execution of the Donation Deed, and ending with the commencement of construction operations, Grantors retain a temporary lease of the conveyed surface in order for Grantors to utilize the property for the same agricultural purposes for which Grantors were using the donated property at the time of the execution of the Donation Deed. Commencement of construction shall automatically terminate said lease. Furthermore, Grantee agrees that it shall not claim the construction or planned construction of the Proposed Roadway on the Right-of-Way as a basis for the denial of the agricultural exemption which presen~y exits on Grantors' property or on property to be granted for the Right-of-Way. 4. Disclaimers. The Right-of-Way shall be conveyed to Grantee without representation or warranty, express or implied and Grantee shall accept the same in its "AS IS" and "WHERE IS" condition and with all faults and defects, latent or otherwise. 5. Assignment. Grantee may not assign all or any part of its rights under this Agreement without the prior written consent of Grantors, which consent may be given or withheld in Grantors' sole and absolute discretion. Any assignment or attempted assignment in violation of this Section 5 shall be null and void and shall constitute a default by Grantee hereunder. 6o Modification. This Agreement cannot under any circumstances be modified orally, and no agreement shall be effective to waive, change, modify or amend this Agreement in whole or in part unless such agreement is in writing and signed by both Grantors and Grantee. 7° Time is of the Essence. Grantors and Grantee recognize, stipulate and agree that time is and shall be of the essence with regard to this Agreement and the performance of the parties' respective obligations hereunder. 8. Successors and Assigns. The terms and provisions of this Agreement shall apply to and bind the permitted successors and assigns of the parties hereto. 0285742.05 -3- 9. Entire Agreement. This Agreement, including the exhibits attached hereto, contains the entire agreement between Grantors and Grantee pertaining to the transaction contemplated hereby and fully supersedes all prior agreements and understandings between Grantors and Grantee pertaining to such transaction. 10. Further Assurances. Both Grantors and Grantee agree that they will without further consideration execute and deliver such other documents and take such other action, whether prior to or subsequent to the grant of the Right-of-Way, as may be reasonably requested by the other party to consummate more effectively the transaction contemplated hereby. 11. Fees and Expenses. In the event of any controversy, claim or dispute between Grantors and Grantee affecting or relating to the transaction contemplated hereby, the prevailing party shall be entitled to recover from the nonprevailing party all of the prevailing party's reasonable expenses, including, without limitation, attorneys' fees, accountants' fees, court costs and interest. 12. Counterparts. This Agreement may be executed in multiple counterparts, and all such executed counterparts shall constitute the same agreement. It shall be necessary to account for only one such counterpart and proving the existence, validity or content of this Agreement. 13. Section Headings. Section headings contained herein are for convenience only and shall not considered in interpreting or construing this Agreement. 14. Choice of Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas, without regard to the confficts of laws principles thereof. 15. Third Party Beneficiary. The provisions of this Agreement and of the documents to be executed and delivered in connection herewith are and will be for the benefit of Grantors and Grantee only and are not for the benefit of any third party. No third party shall have the right or power to enforce the provisions hereof or of the documents to be executed and delivered in connection herewith. 16. Favored Nations Provision. Grantors shall be entitled to favored nations treatment with regard to provisions that Grantors fred necessary or desirable in any other agreement with individuals or entities granting or donating to Grantee an interest in real property in connection with the Proposed Roadway; provided, however, that this Section 16 shall not be applicable to monetary compensation paid to such individuals or entities in connection with such grant or donation. 0285742.05 -4- IN WITNESS WHEREOF, this Agreement is executed, in multiple counterparts, each of which shall be deemed an original, on the date set forth below, to be effective for all purposes as of October , 1994. GRANTORS: Ex ted of October, 1994. ~c~ fi, Jd~-- Smart Dissen, individually and as co-trustee of the W. J. Dissen Marital Trust Executed this It/ y of October, 1994. co-trustee of the W. J. Dissen Marital Trust Executed this of October, 1994. CITY OF PEARLAND, TEXAS, a home rule municipality B y: Name: _~./ Title: 0285742.05 -5- RECEIVED BS/13 18:18 199~ AT 8S1SZH8 PAGE MAY--l~--94 FRI 16:08 PRUDENTIAL PROP ? 154851649 ~. 08 '~ -'- · .~'L:~' ' ' ," g.'/.. J .% oe k Exhibit B THOROUGHFARE. PLAN (EAST PLANNING AREA) crrY OF PEARLAND, TEXAS "mo~,~c.m,'n~ (~o.',r. ore.Y) coOcoo TOZI.ACI~;I~IZ~ .}IE.