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ST0301A-AG110222I_� 0101 M-1 1 91 9111 41 If "I'JUT T H E C 1 T Y O F COPPELL DEPT: Engineering DATE: February 22, 2011 ITEM #: 12 WORK SESSION CONSENT IZI REGULAR ITEM TYPE CONTRACT /BID or PROPOSAL ITEM CAPTION: Consider approval of a License Agreement between the City of Coppell and Luis and Michelle Pajares, owner of 256 Bethel Road to allow the property owner to construct a stone veneer on a City owned barrier wall 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, construct, and maintain a stone veneer on an existing City owned barrier wall within the right of way of Bethel Road. Staff will be available to answer any questions. FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: Staff recommends approval of this agreement with Luis and Michelle APPROVED BY CITY COUNCIL Pajares. ON ABOVE DATE Motion to Approve M - Hunt S - Brancheau Vote - 7 -0 License Agreement Pajares -1 AR MEMORANDUM TO: Mayor and City Council VIA: Kenneth M. Griffin, P.E. Director of Engineering/Public Works FROM: Keith Marvin P.E., Project Engineer DATE: February 22, 2011 RE: Consider approval of a License Agreement between the City of Coppell and Luis and Michelle Pajares, owner of 256 Bethel Road to allow the property owner to construct a stone veneer on a City owned barrier wall within the right of way of Bethel Road; and authorizing the City Manager to sign and execute any necessary documents. Mr. and Mrs. Pajares, the owners of 256 W. Bethel Road, are requesting to construct a stone veneer on an existing barrier wall 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. and Mrs. Pajares. 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. Pajares, he has requested that we allow him to construct a stone veneer on the portion of the wall adjacent to his property. This will help to screen his property more than the open bridge rail concept used for the balance of the wall. The stone veneer will match the existing screening wall in front of his new house. This License Agreement will allow Mr. Pajares to construct the stone veneer in accordance with the attached exhibits. The property owner will be responsible for the maintenance of the stone veneer. In the event of damage to the barrier wall, the city will have the responsibility for structural repairs, and if Mr. Pajares desires to reinstall the stone veneer, that will be his responsibility. Staff recommends approval of the License Agreement between the City of Coppell and Luis and Michelle Pajares, and will be available to answer questions at the Council meeting. F` ' 11 a E�• b�. , , ��� �^!� Y a y ' , � ' j ►CI �w t si ,t IPFA lo � � ♦ �' - •� fat � • �`" ' z y . 4 �' , • • ` ,j ot Y' L 1.02 4 256 W BETHEL ROAD 60 FEET CONCRETE BARRIER WALL TO , BE COVERED IN STONE BY LICENSEE NA . - �� � ma v . i i W BETHEL ROAD EW f y 0 10 20 1 INCH= 20 FT. APPROXIMATE PORTION OF BARRIER WALL PROPOSED FOR STONE VENEER BACK OF CURB W z Q J o Ir z - W Wit CL i PROPOSED LICENSE AGREEMENT, 256 W BETHEL ROAD. EXHIBIT IIBII, 1 OF 2 BARRIER WALL 1 � ,�: � �`" mated on. 2 February 2011 b, SCOtt Latta k S:\CAD\ln_Design\MISC EXH I BITS\dwg \EXHI BITS 2011.dwg \BETHEL 256 Created in CIVILM 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 Luis & Michelle Pajares of 256 W. Bethel Road. (hereinafter referred to as "LICENSEE ") acting by and through their authorized representatives. WITNESSETH: WHEREAS, LICENSEE desires to construct a stone veneer on a city constructed 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 Estates Addition, Document #201000150695, 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 stone veneer on an existing city constructed barrier wall with 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 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 barrier wall. Any repair or replacement of the stone veneer necessary as a result of damage will be the sole responsibility of the LICENSEE. 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 an irrevocable license subject to termination clause, as stated in Section 10, for the purpose of construction and maintenance of the stone veneer on the existing barrier wall 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 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, then this agreement shall be of no further effect. 7. Compliance with laws: LICENSEE agrees to abide by, be governed by, and be responsible for compliance with 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 cause or as defined in paragraph 10, 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. Cause is defined as the failure to maintain or repair the stone veneer on the City barrier wall, after written notice has be provided which details the required remedy. Cure time not less than 30 days from the writer or as agreed on by both parties. In the event the stone veneer is damaged by the failure of the City's barrier wall, Licensee should have no further obligation for maintenance of the stone veneer. 10. Termination: This Agreement may be terminated in any of the following ways: a. Mutual Written agreement of both parties; b. By CITY upon failure of LICENSEE to perform its obligations as set forth in this Agreement; 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. License Agreement - Page 3 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 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. t1ce EXECUTED this day of , 2011. CITY OF COPPELL, TEXAS By: CLAY HILLIPS, CITY MANAGER 255 Parkway Blvd., Coppell, TX 75019 ATTEST: By- HRISTEL PE TINOS, CITY S RETARY ACCEPTANCE.ACKNOWLEDGED BY: LICENSEE LUIS PA A E 256 W. Bet el oa LliTV75019 By: V O MICH P By: License Agreement - Page 4 CITY'S ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DALLAS § This instrument was acknowledged before me on the day of P &C L , 2011 by Clay Phillips, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of said munysfp ..+.. CHRISTEL B. PETTINOS Notary Public, State of Texas My Commission Expires Notary Public, State of Texas My Commission Expires: 0 License Agreement - Page 5 ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF DALLAS This instrument was acknowledged before me on the // day of _Y/ Mot -- , 2011, by L.. W S C4a /V /CW6 ! e P4J�4eES owners of 256 W. Bethel Road. a„ RHONDA AD100 * MY COMMISSION EXPIRES June 22, 2011 My Commission Expires: 6 /. T'lZ0,11, �' NOTARY PUBLIC, State of Texas License Agreement - Page 6 BROCK STREET i — __ - -- H,E_ I r .o =n 1�V nj C �. I1 1 G IC 77 - WAY / =LOOD ' AS SHO 'r 10N53 N AS. t F .,TO1r W A.6 F T11 E R BY TI OINE, 12 FCr IES L�.vi 1 1 ITT HNC w IY DT,E s PH�THRFS I I / I i 1 1 1 LOT 2R II1 % i /, 1 y i 1 1 1 1 1 1 \\ 1 1 42 3 E 19 47 1 +CSI E �., .... h„ P� oxv T s r�1111 A 11111 11 N a F1 1­ �.. .. 1 n -n= . v_hiw �IE. xw..- ------------ b 9 1 D _.. ILIILL H, he a­ IT tle _ �E� sn�y /s •. r a Le Ne o, � 1111ER . D DF 11 s Ma 2D . z, �r IIEN N. ­1 s AL DE IFF_ I H 1 rac a DriT ! oo was_ ,7111 .a, _ I ll 311 U DII r.T c I— 1A o ¢� n r t �. 2111 C -__. ___— . - -._ -_ MEy s� ,\ 2E�LIPED F ...., I Ht t IL.v k C_Hn1 P6.v, C eT,N. A_ B DE Et1N ) . TF rs3.]0 R_FL.. "H _ 0'. AI�H LLE p „a ,'P J iJ_ _ TF— 'tn }Oi E L 5 19 2�1 217 Bethel Road Estat�Lot 2R, Block 1 BEING A REPEAT OF LOT 2, BLOCK I, OF BETHEL ROAD ESTATES AN ADDITION IN THE CITY OF COPPELL, TEXAS, SITUATED IN THE J.W. ANDERSON SURVEY, ABSTRACT NO. 18, DALLAS COUNTY, TEXAS `g "t Prof "I" Land Surveyor BARRY RHODES PHONE PE 972 -475 -9940 R F X 9J2 EXHIBIT "A"