CM-08-01-013DATE: January 7, 2008
SUBJECT: City Manager Approval - January 11, 2008
ITEM: Action authorizing the City Manager to execute an Encroachment
Agreement between Nutraceutical Leasing International, LP and the
City of Round Rock.
Department: Engineering & Development Services
Staff Person: Danny Halden, P.E., City Engineer
Justification:
By execution of this Agreement, the City grants its limited consent for Nutraceutical Leasing
International to encroach on or over a portion of the easement.
Funding:
Cost: $0.00
Source of funds: N/A
Outside Resources: Nutraceutical Leasing International, LP
Background Information:
Nutraceutical Leasing International has requested that the City allow an encroachment on or
over a portion of the Easement, with the encroachment being in the nature of a more or less
100 square foot concrete fountain installation and appurtenances which is shown in Exhibit
A included in the Agreement.
The associated site development permit "Healthline" is proposing a concrete fountain with
granite pavers over an existing waterline. Due to the easement obstruction, the City
requested an encroachment agreement in place for permit issuance.
Public Comment: N/A
Blue Sheet Format
Updated 01/20/04
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Encroachment Agreement
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2008105545 1
This Encroachment Agreement, hereinafter "Agreement," is made and entered into
between Nutraceutical Leasing International, LP, hereinafter referred to as the "Owner,"
whose address is 2000 N. Mays Street, Suite 120, Round Rock, Texas 78664, and the City of
Round Rock, Texas, hereinafter the "City," a municipal home -rule corporation whose
address is 221 East Main Street, Round Rock, Texas 78664, and becomes effective on the
date this document is signed by the City Manager of the City of Round Rock.
Background
A. City is the record holder of the Public Utility Easement, hereinafter the "Easement,"
recorded in Volume 13069, Page 87 of the Real Property Records of Travis County,
Texas, and shown on Exhibit A, attached hereto and made a part hereof for all
appropriate purposes.
B. The Owners are the record owners of certain property described in that certain Special
Warranty Deed dated August 11, 2006 recorded as Document Number 2006154991 in
the Real Property Records of Travis County, Texas.
C. The Owner has requested that the City allow an encroachment on or over a portion of the
Easement, with the encroachment being in the nature of a more or less 100 square foot
concrete fountain installation and appurtenances which is shown in Exhibit A.
In consideration of the mutual covenants contained in this Encroachment Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows.
Terms and Conditions
By execution of this Agreement, the City grants its limited consent for the Owner to
encroach on or over a portion of the easement strictly subject to the following conditions:
(1) The encroaching structure may be located only as depicted on the attached Exhibit A,
and that no further encroachment or improvements of any kind in the Easement
belonging to the City will be allowed;
(2) The. existence of the encroaching structure will be subject to any and all relevant
requirements of the Round Rock Code of Ordinances, including but not limited to the
Building Code;
(3) Use, maintenance, repair and removal of the encroaching structure will be solely at
the risk and liability of the Owner, and not at the risk and liability of the City in any
manner whatsoever;
00126838/PS
C1A CLQ 0I 13
FILED AND RECORDED
OFFICIAL PUBLIC RECORDS 2008005545
01/22/2008 02:28 PM
SURRATT $36.00
NANCY E. RISTER, COUNTY CLERK
WILLIAMSON COUNTY, TEXAS
SCANNED 1 29 OG�
(4) The permission of the City in allowing such encroachment will be strictly limited to
this particular request, and will not ever be construed as establishing any precedent
whatsoever;
(5) The parties expressly agree that the City has full authority in an emergency to remove
or permit to be removed, in whole or part, the encroaching structure, and such
removal will be allowed without notice to the Owner and without any obligation
whatsoever on the part of the City to replace or repair any part or the whole of the
encroaching structure;
(6) In a non -emergency situation, the Owner agrees to be solely responsible for removal
of the encroaching structure to the City's satisfaction, and such removal will be
completed by the Owner within forty-eight (48) hours of actual notice to the Owner
of the City's directive to remove same. The parties expressly agree that, in the event
the Owner fails to remove the encroaching structure to the City's satisfaction within
the forty-eight (48) hours following notice, then and in that event the City may cause
the encroaching structure to be removed at the sole expense, risk, and liability of the
Owner;
(7) The parties expressly agree that the City will never be responsible in any manner
whatsoever for damage caused to the encroaching structure related to the City's
operation or maintenance of the utilities contained within the Easement;
(8) The Owner will indemnify and hold the City harmless from any and all loss, damage,
penalty, liability, cost and expense, including without limitation reasonable
attorney's fees, that may be incurred by, imposed upon, or asserted by reason of any
suit, action, legal proceeding, claim, demand, regulatory proceeding, or litigation
arising from any act done or omitted to be done by any party, excepting only any
loss, damage, penalty, liability, cost or expenses resulting from negligence or willful
misconduct of the City. Nothing herein will be deemed to limit the rights (including
but not limited to the right to seek contribution) of the City or the Owner against any
third party who may be liable for an indemnified claim. The parties agree that in no
event will the City be liable to the Owner for any incidental, indirect, special,
punitive, consequential or similar damages of any kind including without limitation
loss of profits, loss of business or interruptions of business, whether such liabilities
are predicated on contract, tort, strict liability or any other legal theory. This
indemnification shall apply to the Owner, and to each of its successors, assigns,
officers, employees and officials. The parties agree that the provisions of this section
will survive the termination of this agreement; and
(9) Relative to any subsequent purchaser of the encroaching structure, the Owner
expressly agrees to adequately inform any such purchaser of the property as to the
existence of this Agreement and provide a copy of same.
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(10) The City reserves the right to rescind this Agreement at any time, with or without
cause.
By execution below by the Owner and the respective appropriate authorities of the City of
Round Rock, Texas, the signatories bind the entities to obey all conditions of this
Encroachment Agreement.
The Owner:
Nutraceutical Leasing International, LP
a Texas Limited Partnership
By: Texas Supplements, LLC
General Partner
Dr. Robe J. M :` all
Manager and Sole Member
Date Signed: /63/0S/
City of Rou Rock, Texas
Attest:
ALL alitt
Sara White
City Secretary
By:
R. Nuse, P.E.
anager
Date Signed:
3/4
Acknowledgment
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this 2day of , 2007,
by Dr. Robert J. Marshall, whose name is subscribed to the preceding instrument, and
acknowledged to me that she executed it for the purposes and consideration expressed in it.
• Z./E—.:
LETA F. ELLIS
NOTARY PUBLIC STATE OF TEXAS
COMMISSION EXPIRES:
03-12-201 1
THE STATE OF TEXAS
Y f 6N1 fv,
COUNTY OF WILLIAMSON
Notary Public in and for the State of Texas
Acknowledgment
This instrument was acknowledged before me on this
dayof , ,
200f,
by James R. Nuse, P.E., City Manager of the City of Round Rock, in the apacity an for the
purposes and consideration therein indicated.
MONIQUE G. ADAMS
MY COMMISSION EXPIRES
A
vAL Cifitt(10(
September 18, 2ot1 IS Notary Public ' and / r the State of Texas
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ANIIIMELIOLTIr
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