Arbor Manors-AG091013 (2)AGENDA REQUEST FORM
T H E~ G I T Y~ Q F
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WEPT: Engineering
naTE: October 13, 2009
ITEM #: 10/F
WORK SESSION ~ CONSENT ~ REGULAR
tTent TvPe: CONTRACT/BID or PROPOSAL
ITEM CAPTION:
Consider approval of a License Agreement between the City of Coppel and Arbor Manors of Coppe Homeowners
Association; and authorizing the City Managerto sign and execute any necessary documents.
GOAL(S):
.,
~~~
EXECUTIVE SUMMARY:
The License Agreement will allow a screening wa I and decorative poles and signs to be instal ed in the right-of-way
and require the Homeowners Association to maintain them.
Staff will be available to answer any questions.
FINANCIAL COMMENTS:
RECOMMENDED ACTION:
ACTION TAKEN BY COUNCIL:
Staff recommends approval of this agreement with Arbor Manors of
Coppell Homeowners Association.
APPROVED BY
CITY COUNCIL
ON ABOVE DATE
Motion to Approve
M - Tunnell
S - Mahalik
Vote - 7-0
~' Libby Ball
2009.10.1
916:18:55
-05'00'
#Arbor Manors Agreement
MEMORANDUM
FROM THE
DEPARTMENT OF ENGINEERING
T0: Mayor and City Council
VIA: Kenneth M. Griffin, P.E., Director ofEngineering/Public Works
FROM: Michael Garza, E.I.T.
DATE: October 13, 2009
RE: Consider approval of a License Agreement between the City of Coppell and
Arbor Manors of Coppell Homeowners Association; and authorizing the City
Manager to sign and execute any necessary documents.
David Weekly, the developer of Arbor Manors, is required by the zoning ordinance to place a
screening wall on the perimeter of the subdivision. The screening wall that is being constructed
adjacent to the south property line of the Verizon property at 197 W. Sandy Lake Road is in the
right-of way of Juniper Drive due to space constraints. The License Agreement will be for the
use of the right-of way and the maintenance of the wall by the Homeowners Association (HOA).
The developer has installed decorative street signs and poles and decorative regulatory signs and
poles that are not in compliance with City of Coppell standards. This License Agreement also
assigns the maintenance and responsibility of the street signs to the HOA. If a sign and pole is
damaged the City of Coppell will install a standard pole and sign. The HOA will be responsible
to replace our standard pole and sign with a decorative one and return the standard pole and sign
to the City of Coppell.
Staff recommends approval of the License Agreement between the City of Coppell and Arbor
Manors of Coppell Homeowners Association and will be available to answer questions at the
Council meeting.
"CITY OF COPPELL ENGINEERING -EXCELLENCE BY DESIGN"
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1,
STATE OF TEXAS §
COUNTY OF DALLAS
THIS AGREEMENT is made by and between the City of Coppell, Texas (hereinafter
referred to as "CITY") and Arbor Manors Homeowners Association (hereinafter collectively
referred to as "LICENSEE") acting by and through their authorized representatives.
WITNESSETH:
WHEREAS, LICENSEE desires to construct a seven foot high masonry screening wall
within the fifty-foot CITY right-of--way easement of Juniper Drive final plat of Arbor Manors,
Document 1120080314835, as shown on the attached plat marked Exhibit 'A ; and shown on
attached Exhibit H ;and incorporated herein for all purposes; and
WHEREAS, LICENSEE has requested the CITY allow the construction and continued
use and occupancy of the right-of--way for LICENSEE IMPROVEMENTS;
WHEREAS, LICENSEE has installed decorative street signs and decorative regulatory
signs within the right-of--way of Arbor Manors Subdivision and requests continued use and
occupancy of the right-of--way for LICENSEE IMPROVEMENTS;
WHEREAS, LICENSEE will maintain the screening wall, decorative street signs and
decorative regulatory signs within the right-of--way of Arbor Manors subdivision and requests
continued use and occupancy of the right-of--way for LICENSEE IMPROVEMENTS;
WHEREAS, LICENSEE acknowledges that if any permitted sign within the subdivision
is damaged, the CITY will replace it with a standard CITY sign and pole. Any decorative sign
and pole installed as a result of damage will be the sole responsibility of the LICENSEE. If
installed, LICENSEE shall return the standard CITY sign and pole to the CITY's service center
at 816 S. Coppell Rd.;
NOW THEREFORE, in consideration of the covenants contained herein and other
valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Purpose: CITY hereby grants LICENSEE a revocable license, for the purpose of
construction and maintenance of the screening wall and decorative street signs and regulatory
signs within the CITY right-of--way easement (the "PERMITTED IMPROVEMENTS") and
being more particularly depicted on Exhibit H' attached hereto and incorporated herein for all
purposes. With the exception of the screening wall and signs, no additional permanent structures
shall be allowed within the CITY right-of--way easement.
2. Term: The term of this License shall be perpetual, subject, however, to termination by
the CITY as provided herein.
License Agreement -Page 1
3. Non-exclusive: This License is nonexclusive and is subject to any existing utility,
drainage or communications facilities located in, on, under or upon the right-of--way or property
owned by C[TY, any utility or communication company, public or private, to all vested rights
presently owned by any utility or communication company, public or private for the use of the
CITY right-of--way for facilities presently located within the boundaries of the right-of--way and
to any existing lease, license, or other interest in the easement granted by CITY to any
individual, corporation or other entity, public or private.
4. Environmental Protection: LICENSEE shall not use or permit the use of the property
for any purpose that may be in violation of any laws pertaining to the health of the environment,
including without limitation, the comprehensive environmental response, compensation and
liability act of 1980 ("CERCLA"), the resource conservation and recovery act of 1976
("RCRA"), the Texas Water Code and the Texas Solid Waste Disposal Act. LICENSEE warrant
that the PERMITTED use of the property will not result in the disposal or other release of any
hazardous substance or solid waste on or to the property, and that it will take all steps necessary
to ensure that no such hazardous substance or solid waste will ever be discharged onto the
property or adjoining property by LICENSEE. The terms "hazardous substance and waste" shall
have the meaning specified in CERCLA and the term solid waste and disposal (or dispose) shall
have the meaning specified in the RCRA; provided, however, that in the event either CERCLA
or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader
meaning shall apply subsequent to the effective date of such amendment; and provided further, at
the extent that the laws of the State of Texas establish a meaning for hazardous substance,
release, solid waste, or disposal which is broader then that specified in the CERCLA or RCRA,
such broader meaning shall apply. LICENSEE shall indemnify and hold CITY harmless against
all costs, environmental clean up to the property and surrounding CITY property resulting from
LICENSEE' use of the property under this License.
5. Mechanic's liens not permitted: LICENSEE shall fully pay all labor and materials
used in, on or about the property and will not permit or suffer any mechanic's or material man's
liens of any nature be affixed against the property by reason of any work done or materials
furnished to the property at LICENSEE' instance or request.
6. Duration of License: This License shall terminate and be of no further force and effect
in the event LICENSEE shall discontinue or abandon the use of the PERMITTED
IMPROVEMENTS or in the event LICENSEE shall remove the PERMITTED
IMPROVEMENTS from the property or upon termination by CITY whichever event first
occurs; or, in the event that the City abandons the property depicted as an easement on Exhibits
`A' and `B', then this agreement shall be of no further effect.
7. Compliance with laws: LICENSEE agrees to abide by and be governed by all laws,
ordinances and regulations of any and all governmental entities having jurisdiction over the
LICENSEE.
8. Indemnification: LICENSEE shall defend, protect and keep CITY forever harmless and
indemnified against and from any penalty, or any damage, or charge, imposed for any violation
License Agreement -Page 2
of any law, ordinance, rule or regulation arising out of the use of the property by the LICENSEE,
whether occasioned by the neglect of LICENSEE, its employees, officers, agents, contractors or
assigns or those holding under LICENSEE. LICENSEE shall at all times defend, protect and
indemnify and it is the intention of the parties hereto that LICENSEE hold CITY harmless
against and from any and all loss, cost, damage, or expense, including attorney's fee, arising out
of or from any accident or other occurrence on or about the property causing personal injury,
death or property damage resulting from use of property by LICENSEE, its agents, employees,
customers and invitees, except when caused by the willful misconduct or negligence of CITY, its
officers, employees or agents, and only then to the extent of the proportion of any fault
determined against CITY for its willful misconduct or negligence. LICENSEE shall at all times
defend, protect, indemnify and hold CITY harmless against and from any and all loss, cost,
damage, or expense, including attorney's fees arising out of or trom any and all claims or causes
of action resulting from any failure of LICENSEE, their officers, employees, agents, contractors
or assigns in any respect to comply with and perform all the requirements and provisions hereof.
9. A_ etion upon termination: At such time as this License may be terminated or canceled
for any reason whatsoever, LICENSEE, upon request by CITY, shall remove all PERMITTED
IMPROVEMENTS and appurtenances owned by it, situated in, under or attached to the CITY
right-of--way and shall restore such property to substantially the condition of the property prior to
LICENSEE' encroachment at LICENSEE sole expense.
10. Termination: This Agreement may be terminated in any of the following ways:
a. Written agreement of both parties;
b. By CITY upon failure of LICENSEE to perform its obligations as set forth in this
Agreement;
c. By the CITY abandoning any interest in the right-of--way easement.
11. Notice: When notice is permitted or required by this Agreement, it shall be in writing
and shall be deemed delivered when delivered in person or when placed, postage prepaid in the
United States mail, certified return receipt requested, and addressed to the parties at the address
set forth opposite their signature. Either party may designate from time to time another and
different address for receipt of notice by giving notice of such change or address.
12. Attorney's fees: Any signatory to this Agreement, who is the prevailing party in any
legal proceeding against any other signatory brought under or with relation to this Agreement
shall be entitled to recover court cost and reasonable attorney's fees from the non-prevailing
party.
13. GoverninE law: This Agreement is governed by the laws of the State of Texas; and
venue for any action shall be in Dallas County, Texas.
14. Binding effect: This Agreement shall be binding upon and inure to the benefit of the
executing parties and their respective heirs, personal representatives, successors and assigns.
License Agreement -Page 3
15. Entire Agreement: This Agreement embodies the entire agreement between the parties
and supersedes all prior agreements, understandings, if any, relating to the property and the
matters addressed herein and may be amended or supplemented only by written instrument
executed by the party against whom enforcement is sought.
16. Recitals: The recitals to this Agreement are incorporated herein by reference.
17. Legal construction: The provisions of this Agreement are hereby declared covenants
running with the property and are fully binding on all successors, heirs, and assigns of
LICENSEE who acquire any right, title, or interest in or to the property or any part thereof. Any
person who acquires any right, title, or interest in or to the property, or any part hereof, thereby
agrees and covenants to abide by and fully perform the provisions of this agreement with respect
to the right, title or interest in such property.
EXECUTED this „~ ~d day of ~ oUpim,~r2h.~ , 2009.
CITY OF COPPELL, TEXAS
By:
CLAY HILLIPS, CIT MANAGER
ATTEST:
By.
LIBBY BA ITY SEC ETARY
ACCEPTANCE ACKNOWLEDGED BY:
LICENSEE:
ARBOR S MEOWNERS ASSOCIATION
By: ~~° G/~
AME TITLE ~
License Agreement -Page 4
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on the 3rd day of November, 2009, by
Richard K. Anderson, Secretary and Director, of Arbor Manors Homeowners Association, a
Texas non-profit corporation, on behalf of said corporation.
o~~Y°~~~ CINDY DUGGIN l~
l~ ~ ~> * NOTARY PUBLIC, STATE OF TEXAS l)
~(l ~~ /~~ c. MY COMMISSION EXPIRES Cl
111 gTFGf~P FEB. 10, 2011 ~)
My Commission Expires:
lJt~~Z ~ [: ~'u
NOTARY PUS IC, State exas
License Agreement -Page 6
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on the 3rd day of November, 2009, by
Richard K. Anderson, Secretary and Director, of Arbor Manors Homeowners Association, a
Texas non-profit corporation, on behalf of said corporation.
cll O'~~YpUBL CINDY DUGGIN l~
lT~ ~~'~ NOTARY PUBLiC, STATE OF TEXAS ~1
Lllli ~ ~9 MY COMMISSfON EXPIRES (1
S ~ 1
''FoF'~~ FI=B. 10, 2011
My Commission Expires:
r .. -
NOTARY P LIC, State exas
License Agreement -Page 6
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9
Exhibit B