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Item 4ICity of Southlake, Texas MEMORANDUM August 21, 2007 To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Public Works Director Subject: Approve a Right -of -Way Encroachment Agreement for a directional sign for Timarron Country Club, located at 1425 Byron Nelson Parkway. Action Requested: Approve a Right -of -Way Encroachment Agreement for a directional sign for Timarron Country Club, located at 1425 Byron Nelson Parkway. Background Information: Timarron Country Club, acting through its General Manger, Mike Goff is requesting the approval of a right -of -way encroachment agreement for an existing sign for the Timarron Country Club located at 1425 Byron Nelson Parkway. The applicant has received a copy of the city's standard encroachment agreement and has acknowledged that they will comply with the terms of the agreement. The initial term of the agreement is to be 10 years from the date of the agreement Financial Considerations: There are no costs to the City other than the staff time required to execute the right -of -way encroachment agreement. Citizen Input/ Board Review: None Legal Review: This document is prepared using the standard right -of -way encroachment agreement which has been reviewed and approved by the City Attorney's office. Alternatives: The City Council may approve or deny the agreement. Supporting Documents: Location Map Letter from Applicant Right -of -Way Encroachment Agreement Staff Recommendation: Approve Right -of -Way Encroachment Agreement. Staff Contact: Robert H. Price, P.E., Public Works Director Gordon J. Mayer, Jr., P.E., City Engineer 14 0 0 0 P (D 0 wr T I M A R R O N 91)P COUNTRY CLUB .r€ rtlrutLrr r f rhr ClalrLbrf !•:rnrily July 27, 2007 Honorable Mayor and City Council Member's City of'Southlake, Texas Ladies and Gentlemen, On behalf of Tirnarron Country Club (hereinafter referred to as T.C.C,), I would appreciate your granting T.C.0 to encroach upon, use and occupy portions of tike encroachment areas located adjacent to 1.425 Byron Nelson Parkway for the purpose of maintaining the existing directional sigh. In consideration of this permission, T.C.C. will fully comply with the attached Encroachment Agreement and compensate the city for fees as required therein.. If you have any additional questions, or need additional information, please call me directly at (8 17) 481 -7529, ext. 2.32, or contact John Slocun a T.C.C. Board Member, at (214) 564- 4465.. Thank you for your consideration. Sincerely, Mike Goff General Manager 1400 Byron Nelson Parkway o Southlake, Texas 76092 0 817 -481 -7529 e Fax 817 -421 -8485 • Golf Shop 817 -481 -1257 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 Timarron Country Club hereinafter collectively referred to as "Grantee." A. Whereas, Grantee is the owner of Lot 1 of the Block 1, Lot 3 & Block 2, Lot 1, Timarron Golf Course Addition to the City of Southlake, Texas, recorded in Cabinet A Slide 1889 of the Plat Book of Tarrant County (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 [improvements] were located in the Encroachment Area and City has, subject to limitations, agreed to allow them to remain in place. WITNES SETH: 1. 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 improvements. Encroachment Agreement -Page 1 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 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. 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 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 Encroachment Agreement -Page 2 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 Ten 10 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. 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, but shall not include, 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 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 tenn hereof detennine 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 Encroachment Agreement -Page 3 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 improvements that Grantee is currently utilizing in the Encroachment Area. 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 parry 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 in connection with its use of the Encroachment Area. 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 officer, agent, servant or employee of City; that Grantee shall have exclusive control of and the exclusive right to control Encroachment Agreement -Page 4 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. 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), TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH, 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 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 Encroachment Agreement -Page 5 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 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. 16. Grantee covenants and agrees to maintain the Encroachment Area described in Exhibit "A " in a neat, safe and good condition at all times during the Term of this Agreement. 17. 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 have all remedies available at law or in equity, including, without limitation, termination, injunction and specific performance. 18. 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. Encroachment Agreement -Page 6 EXECUTED this day of 1 2007. STATE OF TEXAS § § COUNTY OF TARRANT § CITY OF SOUTHLAKE, GRANTOR Shana Yelverton, City Manager 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 Mike Goff, General Manager Timarron Country Club STATE OF TEXAS § COUNTY OF TARRANT § This agreement was acknowledged before me on this day of by , an individual. 2007 GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of .2007. Notary Public in and for the State of Texas STATE OF TEXAS § COUNTY OF TARRANT § This agreement was acknowledged before me on this day of by an individual. 2007 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 Parkway located on North side of Byron Nelson Parkway adjacent to 1425 Byron Nelson Parkway. See SP07 -230, Variance to Sign Ordinance No. 704 -C for a directional sign for Timarron Country Club, located at 1425 Byron Nelson Parkway. Encroaclunent Agreement — Exhibit A - Page 1