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Item 6CCity of Southlake Department of Planning & Development Services S T A F F R E P O R T April 11, 2007 Right-of-Way Encroachment Agreement for Proposed Lot 20, F. Throop No. PROJECT: 1511 Addition, Masco Service Corporation REQUEST: This is a request for approval of a right-of-way encroachment agreement between the City of Southlake and the owner of the property located at the northwest corner of N. Kimball Avenue and E. Highland Street. The property is currently unplatted and is proposed for subdivision into two lots. Proposed Lot 20 (the southern lot) contains an existing building, driveway, and parking area. The right-of-way dedication for N. Kimball Avenue, required as part of the platting, will result in the encroachment of the internal driveway accessing the parking area on the east side of the building into the right-of-way of N. Kimball Avenue. The purpose of this agreement is to allow for the encroachment of the shown improvements until which time the City requires the described area for street and/or sidewalk improvements. Consider approval of the agreement ACTION NEEDED: ATTACHMENTS: (A) Background Information (B) Vicinity Map (C) Site Plan & Plat Exhibit (D) Encroachment Agreement STAFF CONTACT: Bob Price (748-8097) Ken Baker (748-8067) BACKGROUND INFORMATION OWNER: Masco Service Corporation PROPERTY SITUATION: 1200 N. Kimball Avenue LEGAL DESCRIPTION: Portion of Tract 2A3, situated in the F. Throop Survey, Abstract No. 1511 LAND USE CATEGORY: Medium Density Residential with a T-2 Transition District overlay option. CURRENT ZONING: “B-1” Business Service Park District HISTORY: The City of Southlake placed the "B-1" zoning on the property with approval of Comprehensive Zoning Ordinance No. 480 on September 19, 1989. COUNCIL ACTION: April 3, 2007; Approved (7-0) to table this item at the applicant’s request to the April 17, 2007, City Council meeting. STAFF COMMENTS: City staff has reviewed the agreement prepared by the property owner and recommends the following: 1)Reduce the term of the agreement from 25 years or 90 days notice from the City to 10 years or 90 days notice from the City. Staff expects the improvements to N. Kimball Avenue to occur within the next 5 years. 2)The City Attorney recommended revising the “Encroachment Area” exhibit to exclude areas currently under public use. The Exhibit has been revised by the applicant and included with the agreement. The applicant requested that the term of the agreement remain at a minimum of 25 years or with 90 days notice from the City to the property owner. A response letter from the applicant regarding the staffs recommendation to reduce the term of the agreement is attach. Attachment A Page 1 Attachment B Page 1 Overall Site Plan Exhibit ENCROACHMENT AREA Attachment C Page 1 Plat Exhibit Attachment C Page 2 Applicant Response Letter Attachment C Page 3 Attachment C Page 4 Attachment D ENCROACHMENT AGREEMENT STATE OF TEXAS § § 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, Shana Yelverton, hereinafter referred to as the "City," and Brian Jeffrey Massey and Ryan Todd Massey, hereinafter collectively referred to as "Grantee." Whereas, Grantee is the owner of Lot 19 and Lot 20 of the ____________ Addition to the City of Southlake, Texas, recorded in Cabinet ___, Slide _________ of the Plat Book of Tarrant County (the "Grantee Tract"); and Whereas, Grantee has heretofore dedicated to the City for right-of-way purposes the land Exhibit "A" more particularly described on , attached hereto and made a part hereof (the "Encroachment Area"); and 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. W I T N E S S E T H: For and in consideration of the payment by Grantee of good and valuable consideration, Grantee’s dedicating to the City the Grantee Tract and the true and faithful performance of the mutual covenants herein contained, City hereby grants to Grantee permission to encroach upon, use and occupy portions of the Encroachment Area for the purposes of reconstructing, maintaining and using the existing parking lot and related improvements. Encroachment Agreement-Page 1 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 for work other than routine maintenance and repair 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. 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. 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 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. 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. Encroachment Agreement-Page 2 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, and shall "run with" the Grantee Tract. 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, but shall not include, the parking surface. 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 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. Encroachment Agreement-Page 3 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 Encroachment Area. A term and condition of Grantee’s dedication of the Encroachment Area to the City and of this Agreement is that Grantee shall 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 Encroachment Area. The purpose of this term and condition is to reflect the agreement of the parties that if parking regulations of the City should change between the date this Agreement is executed and the date that the Agreement is terminated, the Grantee will not be required to provide additional parking spaces if they should then be mandated by new regulations, but instead shall be grandfathered to be obligated to provide only the number of spaces for its business as would be required under the City’s present parking requirements. The Grantee will be able to replace the spaces that it loses by this conveyance and retain its status as a properly permitted business. This Section 9 shall survive the termination of this Agreement. 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. Encroachment Agreement-Page 4 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. 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 in connection with its use of the Encroachment Area. 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 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 respondent 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. 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), TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION, Encroachment Agreement-Page 5 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 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. 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 Encroachment Agreement in its entirety in the Tarrant County deed records. After being so recorded, the original hereof shall be returned to the City Secretary. Exhibit "A" Grantee covenants and agrees to maintain the Encroachment Area described in in a neat, safe and good condition at all times during the Term of this Agreement. 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 after receiving a written notice specifying such breach, and unless within 60 days from and after the date such notice is so given Grantee shall have commenced to remove or to cure such breach and shall be proceeding with reasonable diligence to completely remove or cure such breach (provided such breach must be cured within 120 days after such notice), then City shall Encroachment Agreement-Page 6 have all remedies available at law or in equity, including, without limitation, termination, injunction and specific performance. 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 brought by City for the enforcement of the obligations of Grantee, City shall be entitled to recover interest and reasonable attorneys fees. EXECUTED this _____ day of ____________, 2007. CITY OF SOUTHLAKE, GRANTOR By: _________________________________ Shana Yelverton, City Manager STATE OF TEXAS § § COUNTY OF TARRANT § This agreement was acknowledged before me on this _____ day of __________ 2007 by Shana Yelverton, City Manager of the City of Southlake, Texas, who informed me that she is the duly authorized City Manager for the City of Southlake and that she is authorized to execute the above agreement on behalf of said city. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the _____ day of ____________, 2007. _______________________________________ Notary Public in and for the State of Texas Encroachment Agreement-Page 7 GRANTEE BRIAN JEFFREY MASSEY STATE OF TEXAS § § COUNTY OF TARRANT § This agreement was acknowledged before me on this _____ day of ____________ 2007 by Brian Jeffrey Massey, an individual. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the _____ day of ____________, 2007. _______________________________________ Notary Public in and for the State of Texas RYAN TODD MASSEY STATE OF TEXAS § § COUNTY OF TARRANT § This agreement was acknowledged before me on this _____ day of ____________ 2007 by Ryan Todd Massey, an individual. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the _____ day of ____________, 2007. _______________________________________ Notary Public in and for the State of Texas Encroachment Agreement-Page 8 EXHIBIT A Encroachment Area BEING a 0.092 acre tract of land in the Francis Throop Survey, Abstract No. 1511, Tarrant County, Texas as recorded in Volume 16429, Page 396 of the Deed Records of Tarrant County, Texas and being more particularly described as follows: COMMENCING at a P.K. Nail found in the asphalt at the southeast corner of said Throop survey, said corner being the centerline of the intersection of East Highland Street (Co. Road 3034) and North Kimball Avenue (Co. Road 3119); THENCE N 00° 11' 02" E along centerline of said North Kimball Avenue a distance of 227.59 feet to the POINT OF BEGINNING; THENCE N 89° 48' 58 W a distance of 44.00 feet to a point in the west right-of-way line of said North Kimball Avenue; THENCE N 00° 11' 02" E along said west right-of-way a distance of 90.74 feet; THENCE S 89° 48’ 58” E a distance of 44.00 feet to a point in the centerline of said North Kimball Avenue; THENCE S 00° 11' 02 along said centerline of North Kimball Avenue a distance of 90.74 feet to the Point of Beginning and containing in all 3993 square feet or 0.092 acres of land. Encroachment Agreement – Exhibit A - Page 1 Encroachment Agreement – Exhibit A - Page 2