Freeport NIP(1)-AG020813T H E G 1 T Y O F
COFFELL AGENDA REQUEST FORM
ails.,.
x A s CITY COUNCIL MEETING: August 13, 2002 ITEM # 7/E
ITEM CAPTION: Consider approval of a right -of -way use agreement between the City of Coppell and Texas
Dugan Limited Partnership; and authorizing the City Manager to sign.
SUBMITTED BY: Kenneth M. Griffin, P.E.
TITLE: Director of Engineering /Public Works
STAFF COMMENTS:
Executive Summary:
Approval of this right -of -way use agreement will allow the construction of flagpoles within the Freeport
Parkway median immediately north of Bethel Road. For more information see attached memo.
Recommendation:
Staff recommends approval of the right -of -way use agreement between the City of Coppell and Texas Dugan
Limited Partnership for the construction of flagpoles within the Freeport Parkway median.
Staff will be available to answer any questions at the Council meeting.
BUDGET AMT. $ AMT. EST. $
FINANCIAL COMMENTS:
DIR. INITIALS: FIN. REVIEW:
+\ -BID $
CITY MANAGER REVIEW;
Agenda Request Form — Revised 5100 Document Name: #eng4- IAR.doc
MEMORANDUM
FROM THE
DEPARTMENT OF ENGINEERING
To: Mayor and City Council
From: Kenneth M. Griffin, P.E., Dir. of Engineering /Public Works
Date: August 13, 2002
RE: Consider approval of a right -of -way use agreement between the City of Coppell
and Texas Dugan Limited Partnership; and authorizing the City Manager to
sign.
Recently, the City of Coppell was contacted by developers of the Duke - Freeport Addition
concerning the installation of flagpoles in the median of Freeport Parkway near Bethel Road.
This section of Freeport Parkway is a new section that was constructed by the developer of the
Duke - Freeport Addition. The flagpole installation will be very similar to the ones installed in
Royal Lane immediately north of Bethel Road.
Staff recommends approval of the right -of -way use agreement between the City of Coppell and
Texas Dugan Limited Partnership and will be available to answer questions at the Council
meeting.
"CITY OF COPPELL ENGINEERING - EXCELLENCE BY DESIGN"
city of coppell
r_
8/1/2002
Engineering Department
STATE OF TEXAS §
§ RIGHT OF WAY USE AGREEMENT
COUNTY OF DALLAS §
`11115 AGREEMENT ("AGREEMENT") is made by and between the City of Coppell.
Texas ("CITY"), acting by and through its authorized representatives, and TEXAS DUGAN
LIMITED PARTNERSHIP, a Delaware limited partnership ( "LICENSEE").
WITNESSETH:
WHEREAS, LICENSEE desires to construct flagpoles within the right of way of
Freeport Parkway (the "IMPROVEMENTS"),
WHEREAS, the right of way was dedicated to the CITY by the Freeport Parkway
Extension Lot I Block A, Lot 2 Block A & Lot ' ) Block A a Plat of the Duk-e-Freeport Addition
filed on April 03, 2001 in Vol. 2001 065 Pg. 00037 more particularly described in Exhibit "A",
attached hereto and incorporated herein as if set forth in full (the "PROPERTY"); and
WHEREAS, LICENSEE has requested the CITY allow the use and occupancy of the
right of way for the IMPROVEMENTS;
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:
I. Purpose: The CITY hereby grants LICENSEE a revocable license for the purpose of
constructing and maintaining the IMPROVEMENTS (the "PERMITTED
IMPROVEMENTS") within the right of way of the CITY.
2. Term: The term of this License shall be perpetual, subject, however, to termination by
the CITY as provided herein.
3. Non-Exclusive: This License is nonexclusive and is subject to the following: a) to any
existing utility, drainage or communications facilities located in, on, under or upon the
PROPERTY; b) to all vested rights presently owned by any utility or communication company,
public or private, for the use of the PROPERTY for facilities presently located within the
PROPERTY; and c) to any existing lease, license, or other interest in the PROPERTY granted
by the 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 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
LICENSEE will take all steps necessary to ensure that no such hazardous substance or solid
Right-of-way Use Agreement - Page I
waste will ever be discharged onto the PROPERTY or adjoining property by LICENSEE. The
terms "hazardous substance 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 than that
specified in the CERCLA or RCRA, such broader meaning shall apply. LICENSEE shall
indemnify and hold the CITY harmless against all costs, environmental clean Lip of the
PROPERTY resulting from LICENSEE'S use of the PROPERTY under this License in
violation of this AGREEMENT, as proven in a court of competent jurisdiction.
S. 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'si or material
man's liens of any nature to be affixed against the PROPERTY by reason of any work done or
materials furnished to the PROPERTY at LICENSEE'S instance or request.
6. Future CITY use: This License is made expressly subject and subordinate to the right of
the CITY to use the PROPERTY for any public purpose whatsoever. In the event that the
CITY shall, at any time subsequent to the date of this AGREEMENT, at its sole discretion,
determine that the relocation, or removal of the PERMITTED IMPROVEMENTS shall be
necessary or convenient for CITY'S use of the PROPERTY, LICENSEE shall at its sole cost
and expense make or cause to be made such modifications or relocate the PERMITTED
IMPROVEMENTS so as not to interfere with the CITY'S or CITY'S assigns' use of the
PROPERTY. A minimum of thirty (30) days written notice for the exercise of the above action
shall be given by the CITY to LICENSEE, and LICENSEE shall promptly commence to make
the required changes and complete them as quickly as possible, or reirnburse the CITY for the
reasonable cost of making such required changes.
7. 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 the CITY in accordance
with this AGREEMENT, whichever event first occurs; or, in the event that the CITY abandons
the PROPERTY, then this AGREEMENT shall be of no further effect.
8. 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
LICENSEE.
9. Indemnification: LICENSEE shall defend, protect and keep the 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
LICENSEE, whether occasioned by the neglect of Licensee, agents, contractors or assigns, or
those invitees of LICENSEE. LICENSEE shall at all times defend, protect and indemnify, and
it is the intention of the parties hereto that LICENSEE hold the CITY harmless against and
from any and all loss, cost, damage, or expense, including attorney's fee, arising out of or from
Right-of-way Use Agreement - Page 2
any accident or other occurrence on or about the PROPERTY causing personal injury, death or
property damage resulting from the use of the PROPERTY by LICENSEE, its agents and
invitees, except when caused by the willful misconduct or negligence of the CITY, its officers,
employees or agents, and only then to the extent or the proportion of any default or conduct
determined against the CITY for its willful misconduct or negligence. LICENSEE shall at all
times defend, protect, indemnify and hold the 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, its officers, employees, agents,
contractors, or assigns, in any respect to comply with and perform all the requirements and
provisions hereof.
10. Action upon termination: At such time as this License may be terminated or canceled
for any reason whatsoever, LICENSEE, upon request by the CITY, shall remove all
PERMITTED IMPROVEMENTS and appurtenances owned by it, situated in, under or
attached to the PROPERTY, and shall restore such PROPERTY to substantially the condition
of the PROPERTY prior to LICENSEE'S encroachment at LICENSEE'S sole expense.
11. Termination: This AGREEMENT may be terminated in any of the following ways:
a. Written agreement of both parties;
b. By the CITY giving LICENSEE thirty (30) days prior written notice;
C. By the CITY upon failure of LICENSEE to perform its obligations as set forth in
this AGREEMENT, after thirty (30) days prior written notice to LICENSEE and
opportunity to cure;
d. By the CITY abandoning any interest in the PROPERTY,
12. Notice: When notice is permitted or required by this AGREEMENT, it shall be in
writing and shall be deemed delivered in person or when placed, postage prepaid in the United
State 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 of address to the other party.
13. Attorney's Fees: Any party to this AGREEMENT, who is the prevailing party in any
legal proceeding against any other party 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.
14. 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.
15. 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.
16. 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.
Right-of-way Use Agreement - Page 3
17. Recitals: The recitals to this AGREEMENT are incorporated herein by reference.
I& 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 said right, title or interest in the PROPERTY.
19. Successor Owner Obligations: Notwithstanding the above, if and when LICENSEE
assigns all of its right, title or interest in the PROPERTY to a successor owner ("SUCCESSOR
OWNEW'), LICENSEE will only have obligations hereunder to the CITY relating only to the
period of time during which LICENSEE held fee simple title to the PROPERTY, according to
the Dallas County real property records. Similarly, each SUCCESSOR OWNER of the
PROPERTY will only be responsible for its obligations hereunder to the CITY relating only to
the period of time during which the SUCCESSOR OWNER held fee simple title to the
PROPERTY, according to the Dallas County real property records.
Right-of-way Use Agreement - Page 4
EXECUTED this day of 2002.
CITY OF COPPELL, TEXAS
By: __
Jim WiTT, CITY MANAGER
ATTEST:
By:
LIBBY BALL, CITY SECRETARY
TEXAS DUGAN LIMITED PARTNERSHIP,
a Delaware limited partnership
By: DUGAN GENERAL PARTNER LLC, a
Delaware limited liability company, its general
partner
By: DUGAN TEXAS LLC, a Delaware limited
liability company, its sole member
By: DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership, its manager
By: DUKE REALTY CORPORATION, an Indiana
corporation, sole General Partner
By:
Jeffrey D. Turner
Senior Vice President
Right-of-way t,.Jse Agreement - Page 5
LICENSEE'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority a Notary Public in and for the State of Texas, on
this day personally appeared , known to me to be the person and officer
whose name is subscribed to the foregoing instrument and acknowledged to me that the same was
the act of the said, and that he executed the same as the act of said for the purpose and consideration
therein expressed and in the capacity therein.
GIVEN UNDER MY HAND AND SEAI. OF OFFICE this the __ day of
2002.
Notary Public, State of Texas
My Commission Expires:
Right-of-way Use Agreement - Page 6
CITY ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority a Notary Public in and for the State of Texas, on
this day personally appeared Jim Witt being the City Manager of the City of Coppell, Texas, known
to me to be the person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said City of Coppell, Texas, and that he
executed the same as the act of said City of Coppell, Texas for the purpose and consideration
therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
2002.
Notary Public, State of Texas
My Commission Expires:
Right-of-way Use Agreement - Page 7
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