J.G. Allen Survey, Abstract No. 18 (Lot 4R3) - Encroachment Agreement ENCROACHMENT AGREEMENT
STATE OF TEXAS OFFICE A
L RECORD
COUNTY OF TARRANT §
Ei
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
Shunail Corp. hereinafter referred to as "Grantee."
A. WHEREAS, Grantee is the owner of proposed Lot 4R3, of the J.G. Allen No.
18 Addition, (being a revision to Lot 4 of the J.G. Allen No. 18 Addition to the City of
Southlake, Texas, recorded in Cabinet A, Slide 1253 of the Plat Book of Tarrant County,
Texas) (the "Grantee Tract "); and
B. WHEREAS, Grantee has heretofore prepared a plat ( "Grantee's plat ") of the
Grantee tract which dedicates 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, an existing sign on Grantee's property
was located in the Encroachment Area and City has, subject to limitations, agreed to allow
the sign to remain in place; and
D. WHEREAS, Grantee has further agreed to a reservation of right -of -way on
Grantee's plat for the future expansion of Randol Mill Road on the property more
particularly described on Exhibit "A" (the "Reservation Area "); and
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E. WHEREAS, upon the acquisition of the Reservation Area by the City or the
State of Texas for future widening of Randol Mill Road, it is anticipated that certain canopy
and gasoline facilities will be required to be relocated by Grantee.
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
contained, City hereby grants to Grantee permission to encroach upon, use and occupy
portions of the public right -of -way for the purpose of maintaining and using the existing
pole sign located within the Encroachment Area.
2. All 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.
3. 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
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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 existing or proposed improvements installed by
Grantee, its predecessors 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, 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.
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
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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. 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. It is further understood and agreed that upon the
termination of this agreement, Grantee will lose the right to utilize the sign that Grantee is
currently utilizing in the area that will now become public right -of -way. At that time Grantee
will be allowed to replace the sign with another sign(s) on the Grantee Tract if and as
allowed by applicable regulations in effect when the sign is replaced.
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.
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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
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,
H:ILIBRARY\Southlake\ Agreements \EncrchLkyLdy.FN2wpd.wpd (11/13/98) Page 5
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.
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 Area being used by
Grantee for the sign. 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
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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
;x
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 "B" attached hereto in a neat, safe and good condition at all times.
18. In addition to the othergrounds 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. It is specifically understood and acknowledged that Grantee's building,
canopy and gasoline facilities on the Grantee Tract will become nonconforming structures
to the extent that they are not in compliance with current or future setback requirements
of City's Comprehensive Zoning Ordinance and such structure will be allowed to remain
within any such setbacks to the extent permitted by Section 6 of the Comprehensive
Zoning Ordinance, as amended from time to time.
20. It is further understood and acknowledged that upon acquisition of the
Reservation Area by the City or the State of Texas, Grantee's canopy and gasoline
H: \LIBRARY\Southlake\ Agreements \EncrchLkyLdy.FN2wpd.wpd (11/13/98) Page 7
facilities may have to be removed or relocated onto the Grantee tract and that there may
be insufficient area available on the Grantee tract to meet current or future setback
requirements. Nothing in this agreement shall be construed to prevent Grantee or its
successors and assigns from seeking a variance or other appropriate administrative relief
that may be available in the future to obtain permission to replace or relocate Grantee's
canopy and gasoline facilities on the Grantee Tract, subject to the same review and
approval criteria as is applicable to other applications for variances or administrative relief.
21. 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 1e, day of Iv D u , 1998.
CITY OF OUTHLAKE, GRANTOR SHUNAIL CORP., GRANTEE
By: L � . • - By:
$1 . ,
Curti - . Hawk, City Manager Title: :, Mt%
Return to:
Mrs. Sandy LeGrand
City Secretary
City of Southlake
667 N. Carroll Ave.
Southlake, Texas 76092
Phone (817) 481 -5581
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. .
STATE OF TEXAS §
,
,
§
COUNTY OF TARRANT §
:,..:.
This agreement was acknowledged before me on this / day of
.....
Noocrt , 1998 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.
7,
' 1 ■
_ S GIVEN k)NDER MY HAND AND SEAL OF OFFICE this the a day of
L-1,--6kefn ptil- , 1998.
KIM L. BUSH 4 -/;29 c7)-dhes/k
,
.i..)....., Notary Public ■
STATE OF TEXAS Z Not P lic in and for the State of Texas
MyComm Exp. 07/13/2002
H:\LIBRARY\Southlake\Agreements\EncrchLkyLdy.FN2wpd.wpd (11/13/98) Page 9
. ,
.4,.
STATE OF TEXAS §
§
:,..„ COUNTY OF TARRANT §
-4,
; ) This agreement was acknowledged before me on this rq day of
,..5
I.. )0 veA4 be 1998 by ‘)- 1 Let ,1, koa ,,,, is , who informed me that he is the
14 duly authorized a e- of Shunail Corp. (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 1-6 day of
: .: tio ve.,44 , 1998.
...,
(.. . a 4,,,,...4.....„4) --)
_pS P4,
■ r t LORI A. FARWELL -
, •
' - " J . , * Notary Public
STATE OF TEXAS Notary Public in and for the State of Texas
My Comm Exp. 10/27/01 County of
HALIBRARY\Southlake\Agreements\EncrchLkyLdy.FN2wpd.wpd (11/13/98) Page 10
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D198273144
CITY OF SOUTHLAKE
667 N CARROLL AVE
SOUTHLAKE, TX 76092
,-WARNING-THIS IS PART OF THE OFFICIAL RECORD--DO NOT DESTROY
INDEXED--TARRANT COUNTY TEXAS
SUZANNE HENDERSON-- COUNTY CLERK
OFFICIAL RECEIPT
T 0: CITY OF SOUTHLAKE
RECEIPT NO REGISTER RECD-BY PRINTED DATE TIME
199059280 DR92 T024230 11/20/98 14:05
INSTRUMENT FEECD INDEXED TIME
1 D198273144 WD 981120 14:05 CG
T OTAL: DOCUMENTS: 01 F E E S: 31.00
B Y:
/ A I L
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.