Amberpoint BP-CN020819
COUNTY OF DALLAS
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RIGHT-OF-WAY USE AGREEMENT
STATE OF TEXAS
THIS AGREEMENT ("AGREEMENT") is made by and between the City of Coppell, Texas
("CITY") and AmberPoint at Coppell LLC ("LICENSEE") acting by and through their
authorized representatives.
WITNESSETH:
WHEREAS, LICENSEE is currently developing the AmberPoint Business Park located
south and east of the Sandy Lake Road and Royal Lane intersection as platted on February 8,
2002 in Vol. 2002027 Pg. 00071 and more particularly described in Exhibit "A" attached hereto
and incorporated herein for all purposes; and
WHEREAS, the AmberPoint Business Park is bisected by Northpoint Drive, which also
provides access to AmberPoint Business Park; and
WHEREAS, LICENSEE desires to create an improved aesthetic entrance to
AmberPoint Business Park by removing the existing concrete in the Northpoint Drive median
east from Royal Lane for a distance of 300 feet ("PROPERTY"), being more particularly shown
on the map marked Exhibit "B" attached hereto and incorporated herein for all purposes and
replacing it with stamped concrete median noses, a landscape area with irrigation at the east end
and new concrete in the remainder of the median ("PERMITTED IMPROVEMENTS"); and
WHEREAS, LICENSEE proposes to accomplish the work and provide ongoing
maintellance of the landscape area at its own expense;
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: The CITY hereby grants LICENSEE a revocable license for the purpose of
constructing the IMPROVEMENTS (the "PERMITTED IMPROVEMENTS") within the
right of way of the CITY. In consideration of the granting of this AGREEMENT by the CITY,
LICENSEE agrees to provide ongoing maintenance of the landscape area of the median. After
completion of the PERMITTED IMPROVEMENTS by the LICENSEE, CITY shall assume
maintenance of the remainder of median, exclusive of the landscape area.
2. Term: The term of this Agreement shall be perpetual, subject, however, to termination
by the CITY as provided herein.
Right-of-way Use Agreement - Page I
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
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 up 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.
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 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 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
Right-of-way Use Agreement - Page 2
the required changes and complete them as quickly as possible, or reimburse the CITY for the
reasonable cost of making such required changes.
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 median landscape
area 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 attomey's fee, arising out of or from any accident or other occurrence on or about the
median landscape area causing personal injury, death or property damage resulting from use of
median landscape area 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 attomey'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.
9. Termination: This Agreement may be terminated in any of the following ways:
a. Written agreement of both parties;
b. By CITY giving LICENSEE thirty (30) days prior written notice;
c. By 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 CITY abandoning any interest in the PROPERTY;
e. By LICENSEE given CITY ninety (90) days prior written notice and upon
removal of the median landscape area and replacement with concrete paving per
city standards by LICENSEE.
10. 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.
Right-of-way Use Agreement - Page 3
11. Attornev'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.
12. Governinl! law: This AGREEMENT is governed by the laws of the State of Texas; and
venue for any action shall be in Dallas County, Texas.
13. Bindinl! 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.
14. Entire Al!reement: 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.
15. Recitals: The recitals to this AGREEMENT are incorporated herein by reference.
16. Lel!al 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.
17. Successor Owner Oblil!ations: Notwithstanding the above, if and when LICENSEE
assigns all of its right, title or interest in the PROPERTY to a successor owner ("SUCCESSOR
OWNER"), 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
,2002.
By:
J
A TTEt:
By' dfJ.~~ &Li /
LffiBY BALL, TY SECRETARY
AMBERPOINT AT COPPELL, L.L.C.,
a Delaware limited liability company
By: AmberJack, Ltd., an Arizona
corporation, its managing member
By:
Name:
Title:
By:
Name:
Title:
Right-of-way Use Agreement - Page 5
LICENSEE'S ACKNOWLEDGMENT
STATE OF ILLINOIS
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COUNTY OF McLEAN
1, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO
HEREBY CERTIFY THAT and
personally known to me to be the
and of AMBERJACK,
LTD., an Arizona corporation and managing member of AmberPoint at Coppell, L.L.C., a
Delaware limited liability company, and personally known to me to be the same persons whose
names are subscribed to the foregoing instrument, appeared before me this day in person, and
severally acknowledged that as such officers they signed and delivered the said instrument,
pursuant to authority given by the Board of Directors of said corporation, as their free and
voluntary act, and as the free and voluntary act and deed of said corporation, as managing
member of and for and on behalf of AmberPoint at Coppell, L.L.C., for the uses and purposes
therein set forth.
Given under my hand and official seal, this
day of
,2002.
Notary Public
My commission expires:
Right-of-way Use Agreement - Page 6
CITY ACKNOWLEDGMENT
STATE OF TEXAS
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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.
a GIVEN UNDER MY HAND AND SEAL OF OFFICE this the
~"<lt;. ,2002.
19~
day of
c)f1-tj I&c.a-
Notary ic,'State of Texas
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Right-of-way Use Agreement - Page 7
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