ST0301A-AG100928AGENDA REQUEST FORM
T H E C I T Y • O F DEPT
COPPELL DEPT:
1
kkk DATE:
ITEM #:
Engineering
September 28, 2010
15 /D
F1 WORK SESSION n CONSENT 1:1 REGULAR
ITEM TYPE: CONTRACT /BID or PROPOSAL
ITEM CAPTION:
Consider approval of a License Agreement between the City of Coppell and Philip A. Berkebile, Jr., owner of 234 W.
Bethel Road to allow the property owner to construct a barrier wall with a stone veneer within the right of way of
Bethel Road; and authorizing the City Manager to sign and execute any necessary documents.
GOAL(S):
EXECUTIVE SUMMARY:
The License Agreement will allow the property owner to fund and construct a barrier wall with a stone veneer to be
installed in the right -of -way of Bethel Road and require the property owner to maintain them.
FINANCIAL COMMENTS:
RECOMMENDED ACTION:
ACTION TAKEN BY COUNCIL:
Staff recommends approval of this agreement with Philip A. Berkebile, APPROVED BY CITY COUNCIL
Jr. ON ABOVE DATE
Motion to Approve
M - Tunnell
S - Franklin
Vote - 6 -0 • Libby Ball
Mahalik absent 2010.09.3
0 12:40:20
- 05'00'
I #LicenseAgreementBerke
MEMORANDUM
TO: Mayor Pro Tern and City Council
VIA: Kenneth M. Griffin, P.E. Director of Engineering/Public Works
FROM: Keith Marvin P.E., Project Engineer
DATE: September 28, 2010
RE: Consider approval of a License Agreement between the City of Coppell and Philip
A. Berkebile, Jr., owner of 234 W. Bethel Road to allow the property owner to
construct a barrier wall with a stone veneer within the right of way of Bethel
Road; and authorizing the City Manager to sign and execute any necessary
documents.
Philip A. Berkebile, Jr., the owner of 234 W. Bethel Road, is requesting to construct a barrier wall
and stone veneer within the City of Coppell right -of -way. The License Agreement will be for the
use of the right -of -way and the maintenance of the wall by Mr. Berkebile.
During the construction of Bethel Road we have had conversations with the adjacent property
owners about appearance of the completed project. In the case of Mr. Berkebile, he has requested
that we upgrade the rail that wraps around his driveway from a traditional metal beam guard fence
to a masonry rail with stone veneer. Mr. Berkebile is in the process of completing his new home at
234 W. Bethel Road, and feels the stone and masonry will better compliment his new home.
This License Agreement will allow Mr. Berkebile to construct the wall in accordance with the
attached exhibit. The property owner will be responsible for the maintenance of the rail. In the
event of damage to the rail, the city will have the right to erect a metal beam guard fence in place of
the damaged rail. If the owner subsequently repairs or replaces the rail, they will be expected to
return the metal beam guard fence to the city.
Staff recommends approval of the License Agreement between the City of Coppell and Philip A.
Berkebile, Jr., and will be available to answer questions at the Council meeting.
STATE OF TEXAS §
§ LICENSE AGREEMENT
COUNTY OF DALLAS §
THIS AGREEMENT is made by and between the City of Coppell, Texas (hereinafter
referred to as "CITY ") and Philip A. Berkebile, Jr. of 234 W. Bethel Road. (hereinafter referred
to as "LICENSEE ") acting by and through their authorized representatives.
WITNESSETH:
WHEREAS, LICENSEE desires to construct a barrier wall within the variable width
CITY right -of -way easement of West Bethel Road as shown on the final plat of the Bethel Road
Manor Addition, Document #200900163997, as shown on the attached plat marked Exhibit `A',
and shown on attached Exhibit `B', 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 desires to install a barrier wall with stone veneer within the
right -of -way of West Bethel Road and requests continued use and occupancy of the right -of -way
for LICENSEE IMPROVEMENTS;
WHEREAS, LICENSEE will maintain the barrier wall and stone veneer within the right -
of -way of West Bethel Road and requests continued use and occupancy of the right -of -way for
LICENSEE IMPROVEMENTS;
WHEREAS, LICENSEE acknowledges that if the barrier wall within the public right of
way is damaged, the CITY will replace it with a standard CITY metal beam guard fence. Any
repair or replacement of the barrier wall necessary as a result of damage will be the sole
responsibility of the LICENSEE. If installed, LICENSEE shall return the standard metal beam
guard fence 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 barrier wall and stone veneer within the CITY right -of -way
easement (the "PERMITTED IMPROVEMENTS ") and being more particularly depicted on
Exhibit `B' attached hereto and incorporated herein for all purposes. 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 CITY, 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
warrants 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
of any law, ordinance, rule or regulation arising out of the use of the property by the LICENSEE,
License Agreement - Page 2
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 from 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. Action 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. Governing 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.
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
License Agreement - Page 3
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 day of 1 2010.
CITY OF COPPELL, TEXAS
CLAY PHILLIPS, CITY MANAGER
ATTEST:
LIBBY BALL, CITY SECRETARY
ACCEPTANCE ACKNOWLEDGED BY:
LICENSEE:
PHILIP A. BERKEBILE, JR.
ma
License Agreement - Page 4
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the day of 2010
by Clay Phillips, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of said
municipality.
Notary Public, State of Texas
My Commission Expires:
License Agreement - Page 5
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was aclalowledged before me on the
2010, by
owner of 234 W. Bethel Road.
day of
NOTARY PUBLIC, State of Texas
My Commission Expires:
License Agreement - Page 6