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Item 4DCITY �1 � u ❑ l SO 1 l� l LAKE MEMORANDUM (May 4, 2010) To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Public Works Director Subject: Approve cancellation of the Right -of -Way encroachment agreement at 500 North Kimball Avenue Action Requested: Approve cancellation of the Right -of -Way Encroachment Agreement at 500 North Kimball Avenue Background Information: Kimley Horn & Associates, Inc. has prepared construction plans for Phase 1 (SH 114 to Highland Drive) of the North Kimball Avenue widening project. In order to facilitate construction of the proposed improvements, right -of -way will be required from several tracts of land located along North Kimball Avenue between S.H. 114 and Kirkwood Boulevard. The city already owns the required Right -of -Way at 500 North Kimball Avenue; however the property is currently being used for a permanent parking lot by the adjacent property owner in accordance with the attached Right -of- Way Encroachment Agreement. The initial term of the agreement is 25 years (beginning December of 1996) however; paragraph 8 of said agreement authorizes the City Council to cancel the encroachment agreement at any time in order to construct public streets or sidewalks or to utilize the public right -of -way for any other public use. Upon cancellation of the agreement, the city is obligated to give the adjacent property owner 90 days written notice prior to utilization of the encroachment area. Financial Considerations: N/A Strategic Link: The construction of Phase 1 of the North Kimball Avenue widening project links to the city's strategy map relative to the focus areas of Mobility and Infrastructure. The specific corporate objectives that are met by the construction of this new transportation infrastructure include: Providing travel convenience within the city and region, investing to provide and maintain high quality public assets, and providing high quality customer service. Citizen Input/ Board Review: None Legal Review: None Alternatives: The City Council may approve the cancellation or deny it. Supporting Documents: Location Map Encroachment Agreement Staff Recommendation: Approve cancellation of the Right -of -Way encroachment agreement at 500 North Kimball Avenue Staff Contact: Robert H. Price, P.E., Public Works Director Gordon J. Mayer, Jr., P.E., City Engineer Michael James, P.E., Civil Engineer I • OF �I PM • �I �I 0 lit" ENCROACHMENT AGREEMENT STATE OF TEXAS § OF FICIAL R EC O R COUNTY OF TARRANT § THIS AGREEMENT is made and entered into by and between the City of Southlake, a home rule municipal corporation in Tarrant County, Texas, acting herein by and through its duly authorized City Manager, Curtis E. Hawk, hereinafter referred to as the "City," and Anderson Industries, Inc., hereinafter referred to as "Grantee." 1 A. Whereas, Grantee is the owner of Lot 1, Block of the Mesco Addition to the City of Southlake, Texas, recorded in Cabinet A , Slide 323 Z of the Plat Book of, Tarrant County, Texas (the "Grantee Tract "); and B. Whereas Grantee has heretofore dedicated to the City for right -of -way purposes the land more particularly described on Exhibit "A!', attached hereto and made a part hereof (the "Encroachment Area "); and C. Whereas, at the time of dedication, certain of Grantee's parking spaces were located in the Encroachment Area and City has, subject to limitations, agreed to allow them to remain in place. WITNESSETH: 1. For and in consideration of the payment by Grantee of good and valuable consideration and the true and faithful performance of the mutual covenants herein f: \tiles \slake \contract \parking.fn3 (11- 04 -96) 12606 0709 contained, City hereby grants to Grantee permission to encroach upon, use and occupy portions of the public streets for the purpose of reconstructing, maintaining and using the existing parking lot and related improvements. 2. All reconstruction, maintenance and operation in connection with such encroachment, use, and occupancy shall be performed in strict compliance with the Charter, Ordinances and Codes of City and in accordance with the directions of the Director of Public Works of City, or his duly authorized representative. All plans and specifications therefor shall be subject to the prior written approval of the Director of Public Works, or his duly authorized representative, but such approval shall not relieve Grantee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon completion of reconstruction and thereafter, there shall be no further encroachments in, under, on or above the surface area of the streets and sidewalks involved. 4. Grantee, at no expense to City, shall make proper provision for the relocation and /or installation of any existing or future utilities affected by such encroachment, use and occupancy, including the securing of approval and consent from the utility companies and the appropriate agencies of the State and its political subdivisions. In the event any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned or constructed by or on behalf of the public or at public expense is made more costly by virtue of the construction, maintenance or existence of such f: \files \slake \contract\parking.fn3 (11-04-6) 2 12 606 0710 encroachment and use, Grantee shall pay to City an additional amount equal to such additional cost as determined by the Director of Public Works, or his duly authorized representative. 5. City may enter and utilize the Encroachment Area at any time for the purpose of installing or maintaining improvements necessary for the health, safety and welfare of the public or for any other public purpose. In this regard, City shall bear no responsibility or liability for damage or disruption of improvements installed by Grantee or its successors, but City will make reasonable efforts to minimize such damage. 6. The initial term of this agreement shall be twenty -five (25) years, commencing on the date this agreement is executed, subject to termination as provided elsewhere herein. The rights, duties, obligations and liabilities herein set forth shall be appurtenant to, �-,nd shall "run with" the Grantee Tract. 7. Upon the termination of this agreement for any reason whatsoever, Grantee shall, at the option of City and at no expense to City, remove all of Grantee's improvements from the Encroachment Area which rise above the level of the parking surface. 8. It is further understood and agreed between the parties hereto that the City streets and sidewalks, including the portions of such streets and sidewalks to be used and encroached upon as described herein, are held by City as trustee for the public; that City exercises such powers over the streets as have been delegated to it by the Constitution of the State of Texas or by the Legislature; and that City cannot contract away its duty and its f: \files \slake \contract \parking.fn3 (11- 04 -96) 3 12606 0711 legislative power to control the streets for the use and benefit of the public. While there is no conflict now, and barring any future conflict between uses of the Encroachment Area by the City and the Grantee, Grantee's continued use of such area will not be terminated unreasonably, it is nevertheless agreed that if the City Council should at any time during the term hereof determine in its sole discretion to construct public streets within the public right- of -way or to use or cause or permit the said portions of the streets and sidewalks to be used for any other public purpose, including but not being limited to underground, surface or overhead communication, drainage, water lines, sanitary sewerage, transmission of natural gas or electricity, or any other public purpose whether presently contemplated or not, which is not compatible with Grantee's continued use, then to the extent of the conflict, this agreement shall be cancelled and terminated upon a majority vote of the city council. 9. In the event this agreement is cancelled and terminated as provided in Paragraph 8, City will give Grantee 90 days written notice of City's intent to utilize the Encroachment Area. Grantee shall remove any improvements as required by this agreement within such time period as well as such additional time as is necessary because of delays not reasonably foreseeable by Grantee. No construction by City which interferes with Grantee's use of the Encroachment Area shall occur until such time period has expired. It is further understood and agreed that upon the termination of this agreement, Grantee will lose the right to utilize the parking spaces that Grantee is currently utilizing in the area that will now become public right -of -way. A term and condition of this Agreement is that Grantee shall f: \files \slake \contract \parking.fn3 (11- 04 -96) 4 12606 0712 be entitled to continue his business operation in its current mode by replacing the exact number of parking spaces in a new location that it will lose when the Agreement terminates and the City acquires full use and control of the right -of -way. The purpose of this term and condition is to reflect the agreement of the parties that if parking regulations should change between the date this Agreement is executed and the date that the Agreement provides for the City to take full control of the easement, the Grantee will not be required to provide additional parking spaces if they should then be mandated by new regulations. The Grantee will be able to replace the spaces that it loses by this conveyance and retain its status as a properly permitted business. 10. Grantee understands and agrees that the granting of any encroachment hereunder is not meant to convey to Grantee any right to use or occupy property in which a third party may have an interest, and Grantee agrees that it will obtain all necessary permission before occupying such property. 11. Grantee agrees to comply fully with all applicable federal, state and local laws, statutes, ordinances, codes or regulations in connection with the construction, operation and maintenance of said encroachments and uses. 12. Grantee agrees to pay promptly when due all fees, taxes or rentals provided for by this agreement or by any federal, state or local statute, law or regulation. 13. Grantee covenants and agrees that it shall operate hereunder as an independent contractor as to all rights and privileges granted hereunder and not as an f. \files \slake \contract\parking.fn3 (11-04 -96) 5 12606 0713 officer, agent, servant or employee of City; that Grantee shall have exclusive control of and the exclusive right to control the details of its operations, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees; that the doctrine of respondeat superior shall not apply as between City and Grantee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Grantee. 14. GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND /OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OF CHARACTER, WHETHER REAL OR ASSERTED, (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), ARISING OUT OF OR IN CONNECTION WITS, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF SAID ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES OF f. \files \slake \contract\parking.fn3 (11- 04 -96) 6 12606 0714 CITY; AND GRANTEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. GRANTEE SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF GRANTEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS. 15. Grantee agrees, binds and obligates itself to maintain public liability insurance covering all public risks related to the proposed use and occupancy of public property as located and described in the portion of the Encroachment Agreement Area being used by Grantee for parking or access. The amounts of such insurance shall be not less than the following: Property damage, per occurrence $100,000 Personal injury or death, per occurrence $1 with the understanding of and agreement by Grantee that such insurance amounts shall be revised upward at City's option (but not in excess of the limits then being required by the City of other independent contractors doing business with the City) and that Grantee covenants and agrees to so revise such amounts within thirty (30) days following notice to Grantee of such requirement. Such insurance policy shall provide that it cannot be cancelled f: \files \slake \contract \parking.fn3 (11 -04 -6) 7 12606 0715 or amended without at least thirty (30) days prior written notice to City. The liability insurance policy shall name City as an additional insured. Grantee shall provide to City a copy of an endorsement to Grantee's liability policy wherein either City is named therein as an additional insured or blanket coverage is provided for all persons or organizations required to be "additional insureds" by written contract. 16. Grantee agrees to deposit with City when this agreement is executed a sufficient sum of money to be used to pay necessary fees to record this Consent Agreement in its entirety in the deed records. After being so recorded, the original hereof shall be returned to the City Secretary. 17. Grantee covenants and agrees to maintain the encroachments described in Exhibit "A" in a neat, safe and good condition at all times. 18. In addition to the other grounds for termination provided for in this agreement, this agreement may be terminated by the City should Grantee breach any terms or conditions set forth in this agreement and not cure same within 30 days after written notice thereof. 19. Grantee agrees that should any action, at law or in equity, arise out of the terms of this agreement or on account of Grantee's maintaining or using the encroachment described herein, venue for said action shall be in Tarrant County, Texas. In any action f: \files \slake \contract\parking.fn3 (11-04 -96) 8 12606 0716 brought by City for the enforcement of the obligations of Grantee, City shall be entitled to recover interest and reasonable attorneys fees. EXECUTED this 9 T M day of of G r m o t g , 1996. CITY OF SOUTHLAKE, GRANTOR ANDERSON INDUSTRIES, INC., GRANTEE �a By: By: Cu ' . Hawk, City Mana P m T v R.t-! TO Mrs Sp•N 0. L -r 4 v-h." c> c� t T`E S E (—RE TAIZY C IT O F SC) t.-)'T ! AL-P�K -� l zm� (67 N. CAPKtLL NNE �� �Z't -{ t� DS1C t✓ 1 T �c �LID Iz R %1 4<3/-.5!58( f: \files \slake \contract \parking.fn3 (11 -04 -%) 9 12606 0717 STATE OF TEXAS § COUNTY OF TARRANT § This agreement was acknowledged before me on this S day of Nzember 1996 by Curtis E. Hawk, City Manager of the City of Southlake, Texas, who informed me that he is the duly authorized City Manager for the City of Southlake, that he was authorized to execute the above agreement on behalf of said city. GIVE-IN UNDER MY HAND AND SEAL OF OFFICE this the day of 1996. 9&LZl40 - dX3 'tuw03 46 y,+ 30 Nota Public in and for the State of Texas SVX31 3O 31d1S oll9nd tis1 °N v r Hsna 'l NN d A�tl'o f: \files \slake \contract \parking.fn3 (11 -04 -6) 10 12606 0718 STATE OF TEXAS § COUNTY OF TARRANT § This agreement was acknowledged before me on this `, j day of November 1996 by John T. Eubanks , who informed me that he is the duly authorized President of Anderson Industries Inc., a Texas corporation, and that he was authorized to execute the above agreement on behalf of said corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the � day of r , 1996. Notary Yublic in and for the State of Texas County of Tarrant E0 04". S , s ar retr Exp 1213 -W f: \files \slake \contract \parking.fn3 (11- 04 -96) 11 12606 0719 42.50 FOOT WIDE STREET DEDICATION FOR PROPOSED LOT 1, BLOCK A MESCO ADDITION CITY OF SOUTHLAKE, TARRANT COUNTY, TEXAS BEING a tract of land in the City of Southlake, out of the Thomas Mahan Survey, Abstract No. 1049, in Tarrant County, Texas, and being part of the land deeded to Anderson Industries, Inc., as per the Deed recorded in Volume 10336, Page 1466, and to Mesco Metal Buildings Corporation Anderson Industries, Inc., as per the Deed recorded in Volume 10336, Page 1471, Deed Records, Tarrant County, Texas, and being more particularly described as follows: BEGINNING at a PK nail set in the centerline of Kimball Road (County Road No. 3119)(a 60' ROW by Easement), said point being N 00 ° 00' 34" W, 828.80 feet from the Southeast corner of the 21.9078 acre tract described in the Deed to Anderson Industries, Inc., in Volume 10336, Page 1466; THENCE: S 83 ° 56' 10" W, 42.74 feet to a point for corner; THENCE: N 00° 00'34" W, 495.14 feet, parallel to and 42.50 feet from the centerline of Kimball Road, to a point for corner in the North line of said 21.9078 acre tract: THENCE: East, 42.50 feet along the North line of said 21.9078 acre tract to a PK nail found in the centerline of Kimball Road, said point being the Northeast corner of said 21.9078 acre tract: THENCE: S 00' 00'34" E, 490.64 feet along the centerline of Kimball Road to the PLACE OF BEGINNING and containing 0.4809 acres of land. CA0McelwpwWwpd u%mfsel*p.491a.wo September 17, 1996 /�'- fur EXHIBIT A 12606 0720 D196240890 CITY OF SOUTHLAKE SANDRA LEGRAND CITY SEC 667 N CARROLL AVE SOUTHLAKE TX 76092 -W A R N I N G -THIS IS PART OF THE OFFICIAL RECORD - -D 0 N 0 T D E S T R O Y I N D E X E D - - T A R R A N T COUNTY T E X A S S U Z A N N E H E N D E R S 0 N -- COUNTY CLERK O F F I C I A L R E C E I P T T 0: CITY OF SOUTHLAKE RECEIPT NO REGISTER RECD -BY PRINTED DATE TIME 197061054 DR93 T008322 12/11/96 09:15 INSTRUMENT FEECD INDEXED TIME 1 D196240890 WD 961211 09:13 CA T 0 T A L: DOCUMENTS: 01 F E E S: 31.00 B Y: ANY PROVISION WHICH RESTRICTS THE SALE RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW. 12606 0721