Item 5CCity of Southlake, Texas
MEMORANDUM
August 5, 2003
To: Billy Campbell, City Manager
From: Pedram Farahnak, P.E., Director of Public Works, ext. 2308
Subject: Authorize the City Manager to execute a right of way encroachment agreement
with the developer of Vermilion Addition for construction of an entry feature.
Action Requested: Authorize the City Manager to execute a right of way encroachment
agreement with the developer of Vermilion Addition for construction of an
entry feature.
Background
Information: The final plat for the Vermilion Addition was approved in January, 2003. The
addition is located on the north side of W. Southlake Boulevard just west of
Jellico Estates. The addition consists of fourteen one -acre residential lots and
two office zoned lots fronting on W. Southlake Boulevard.
The developer of Vermilion Addition, Wilbow - Southlake Development
Corporation, has submitted a request to City staff to construct an entry feature
separating the residential lots from the office zoned lots. This entry feature
will consist of a small (18 "x18 ") stone column on each side of the roadway
with a removable wrought iron fence attached to larger columns on the private
office zoned lots.
The developer will be required to provide liability insurance and then require
the owner of the two office zoned lots to maintain the liability insurance once
those lots are sold, if this encroachment agreement is approved.
Financial
Consideration: None.
Citizen Input/
Board Review: None.
Legal Review: The City attorney has reviewed this agreement.
Alternatives: City Council may approve, deny, or modify the agreement.
Supporting
Documents: Letter of Request
Agreement
Location Map
Plat Exhibit
Staff
Recommendation: Authorize the City Manager to execute a right of way encroachment
agreement with the developer of Vermilion Addition for construction of an
entry feature.
Staff
Contact: Pedram Farahmk, P.E., Director of Public Works, 481 -2308
Charlie Thomas, P.E., City Engineer, 481 -2175
ENCROACHMENT AGREEMENT
THIS AGREEMENT is made and entered into by and between the City of Southlake, a home rule
municipal corporation in Tarrant and Denton Counties, Texas, acting herein by and through its duly
authorized City Manager, Billy Campbell, 1400 Main Street, Suite 460, Southlake, Texas 76092,
hereinafter referred to as the "City," and Wilbow - Southlake Development Corporation hereinafter
referred to as "Grantee,"
WITNESSETH:
[address].
1. For and in consideration of Grantee's true and faithful performance of the covenants herein
contained, City hereby grants to Grantee permission to encroach upon, use and occupy portions of
the public right -of -way solely for the purpose of erecting and maintaining two stone columns (the
"Encroachment "), described in the attached Exhibit "A ", for descriptive purposes only to be located
in street parkway (Encroachment Area). If such columns and wrought iron fences are damaged and
must be reconstructed, the City must first approve the plans for the reconstruction.
2. Grantee shall be responsible for all maintenance and operation in connection with the
encroachment, use, and occupancy. Grantee shall maintain the Encroachment 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.
3. The parties agree that 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 other public 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. Grantee agrees that City shall bear no responsibility or liability for damage or
disruption of proposed improvements installed by or on behalf of Grantee, its predecessors or its
successors, but City will make reasonable efforts to minimize such damage.
6. The duration of this Agreement shall be ninety -nine (99) years, but shall be subject to
termination as provided elsewhere herein. It is agreed that the rights, duties, obligations and liabilities
herein set forth shall be personal to Grantee and shall automatically terminate upon the sale,
transference, assignment, or other conveyance to any person or entity not a parry to this Agreement.
7. Upon the termination of this Agreement for any reason, Grantee shall, at the option of City and
at no expense to City, remove all of Grantee's improvements from the Encroachment Area.
8. The parties hereto agree that the City streets, sidewalks and public rights- of -way, including the
portions of such streets, sidewalks, and public rights -of -way 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 determines, 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 canceled and terminated upon a majority vote of the
City's city council.
9. In the event this Agreement is canceled and terminated as provided in Paragraph 8, City will give
Grantee 90 day's written notice of City's intent to utilize the Encroachment Area. Grantee shall, at
Grantee's sole expense, remove the Encroachment as required by this Agreement within such time
period. City shall not be liable to Grantee for the costs of any such required removal, nor shall City be
under any obligation to provide Grantee with an alternate location for the Encroachment. No
construction by City which interferes with Grantee's use of the Encroachment Area shall occur until
such time period has expired unless approved in writing by Grantee.
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. Approval of this Agreement does not excuse Grantee from the requirement to
obtain a building permit or comply with other City ordinances.
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 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 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 THE 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 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 Area being used by Grantee for the Encroachment. The amounts of such insurance shall
be not less than the following:
Property damage, per occurrence $100,000
Personal injury or death, per occurrence $1,000,000
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 canceled or amended without at least thirty (30) days prior written
notice to City. The liability insurance policy shall name City, its employees and officers as additional
insureds.
Grantee shall provide to City a copy of an endorsement to Grantee's liability policy
wherein either City, its officers and employees, are named therein as an additional insured or blanket
coverage is provided for all persons or organizations required to be "additional insureds" by written
contract.
The amount of all required insurance policies is not deemed to be a limitation on Grantee's agreement to
indemnify and hold harmless City, and in the event Grantee or City become liable in an amount in
excess of the amount or amounts of the policies, then Grantee must save City harmless from the whole
liability.
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 Encroachment 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 Encroachment described in Exhibit "A" attached
hereto in a neat, safe and attractive 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 Area 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.
20. All notices, demands, requests or replies provided for or permitted by this Agreement shall be in
writing to the addresses stated in the Preamble hereof and may be delivered by anyone of the following
methods: (1) by personal delivery; (2) by deposit with the United States Postal Service as certified or
registered mail, return receipt requested, postage prepaid to the addresses stated below; or (3) by deposit
with an overnight express delivery service.
Notice deposited with the United States Postal Service in the manner described above shall be deemed
effective one (1) business day after deposit with the U. S. Postal Service, or notice by overnight express
delivery service shall be deemed effective one (1) business day after transmission to the overnight
express carrier.
21. This Agreement and the exhibits incorporated and attached constitute the entire agreement
between the City and Grantee for the uses granted. All other agreements, promises and representations
with respect thereto, unless contained in this Agreement, are expressly revoked, as it is the intention of
the parties to provide for a complete understanding, within the provisions of this document, and the
exhibits incorporated and attached hereto, of the terms, conditions, promises, and covenants
relating to Grantee's use of the Encroachment Area. The unenforceability, invalidity, or illegality of any
provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal.
22. No waiver of any covenant or condition or of the breach of any covenant or condition of this
Agreement shall be taken to constitute a waiver of any subsequent breach of the covenant or condition
nor to justify or authorize the nonobservance on any other occasion of the same or any other covenant or
condition hereof. Any waiver or indulgence of Grantee's default will not be considered an estoppel
against City. It is expressly understood that if at any time Grantee is in default in any of its conditions or
covenants hereunder, the failure on the part of City to promptly avail itself of said rights and remedies
which City may have, will not be considered a waiver on the part of City, but City may at any time avail
itself of said rights or remedies or elect to terminate this Agreement on account of said default.
23. Grantee and City agree that this Agreement shall not be construed against either party, it being
understood that both parties contributed to the preparation of this Agreement.
EXECUTED this day of
2003.
CITY OF SOUTH LAKE, GRANTOR
Billy Campbell, City Manager
Return to:
Ms. Lori Farwell
City Secretary
City of Southlake
1400 Main Street
Suite 270
Southlake, Texas 76092
Phone (817) 481 -1519
WILBOW - SOUTHLAKE
DEVELOPMENT CORPORATION
Title:
STATE OF TEXAS §
COUNTY OF TARRANT�
BEFORE ME, on this day personally appeared Billy Campbell known to me (or proved to me on
the oath of or through (description of
identity card or other document) to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that he is the duly authorized City Manager of the City of
Southlake, and that he executed same on behalf of said corporation for the purposes and consideration
therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
1 2003.
[SEAL] Notary Public in and for the State of Texas
Type or Print Notary's Name
STATE OF TEXAS §
COUNTY OF TARRANT §
My Commission Expires:
BEFORE ME, on this day personally appeared known to me
(or proved to me on the oath of or through
(description of identity card or other document) to be the person and
officer whose name is subscribed to the foregoing instrument and acknowledged to me that he /she is the
duly authorized of the Vermilion Property Owner's Association and that he /she executed same on behalf
of said corporation for the purposes and consideration therein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 2003.
[SEAL]
Notary Public in and for the State of Texas
Type or Print Notary's Name
My Commission Expires:
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EXHIBIT "
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COLUMN PLACEMENT
Wednesday, May 28, 2003
City of Southlake
Attn: Mr. Charlie Thomas
1400 Main Street, Suite 320
Southlake, TX 76092
RE: Request for Allowance of Entryway Columns within Right -of -Way
of Vermilion Court in Southlake, Texas
Dear Charlie:
Please consider this letter an official request to allow a portion of an entryway
feature at Vermilion to be located within the right-of-way (ROW) of Vermilion
Court. Our plan, as you know, includes fourteen (14) residential 1 -acre lots
located behind two (2) office tracts. In order to create a sense of separation
between the two (2) types of zoning, we propose to construct an entryway feature
partially within the ROW as shown in greater detail on the enclosed Exhibit "A"
entitled Column Placement. Please note that this exhibit is detailing the layout,
not the actual design of the columns.
The footprint of each of the two (2) small columns located within the ROW will
not exceed eighteen (18) inches square and these small columns will be located
within the portion of Vermilion Court that will have a curb. In addition,
removable panels of wrought iron, each approximately ten (10) feet in length,
will connect the small columns located within the ROW to the larger columns
located within the office tracts. This removable fence will allow underground
utilities to be accessible if needed.
The columns will be constructed immediately upon approval, and the property
owner of Lots 1 and 16 will maintain each column respectively. When a site plan
is submitted to the City by the future owners of these lots for construction within
these two (2) office lots, the required masonry screen wall will terminate into
these columns.
Please also find enclosed pictures of similar structures throughout the City that
appear to be located within the ROW. The multitude of examples of this type of
construction prompted our submittal to the City for approval of our entryway
columns. Feel free to contact me with any questions.
Respe tfallt
Greg \ , t o
Proje t ager
Wilbow- Southlake Development Corporation
9330 LBJ Fwy, Suite 745, LB 68
Dallas, TX 75243
Phone: (972) 479 -0697 Fax: (972) 479 -0397