Lakewood Est 18E-AG011113T H E ~ . ~ . ~ T .~ ~ o R --~ AGENDA R~. ~,UEST FORM
COPPELL
~ ~ ~ 9~
~ ~ x ,, a B q ~ CITY COUNCIL MEETING: November 13, 2001 ITEM #
ITEM CAPTION:
Consider approval of a license ageement between the City of Coppell and David J. and Diana R. Fischer to
allow for the continued use of a portion of a sanitary sewer easement located at 1002 Forestwood Lane, and
authorizing the Mayor to sign.
SUBMITTED
TITLE:
STAFF COMT
See attached memo.
Kenneth M. Griffin, P.E~
Dir. of Engineering/Public
BUDGET AMT. $ AMT. EST. $
FINANCIAL COMMENTS: ~~~
DIR. INITIALS: kj FIN. REVIEW:-~
Agenda Request Form -Revised 5/00
C1~,~„~~ s~.~_
APPROVED
CITY COUNCIL
DATE- n
+\-BID $
CITY MANAGER REVIEW:
Document Name: #eng3
MEMORANDUM
FROM THE
DEPARTMENT OF ENGINEERING
To: Mayor and City Council
From: Kenneth M. Griffin, P.E., Dir. of Engineering/Public Works
Date: September 26, 2000
RE: Consider approval of a license agreement between the City of Coppell and
David J. and Diana R Fischer to allow for the continued use of a portion of a
sanitary sewer easement located at 1002 Forestwood Lane; and authorizing the
Mayor to sign.
In 1993 the house at 1002 Forestwood Lane in the Lakewood Estates subdivision was
constructed. The information provided to the City for permitting purposes failed to show an
existing 30-foot sanitary sewer easement along the west side of the property. As a result of this,
the corner of the house was constructed approximately 5 feet within the existing 30-foot utility
easement. Subsequent to the construction of the home, a pool was constructed and again the
information provided to the City failed to show the existing 30-foot utility easement. As with the
construction of the house, a portion of the pool was constructed within the existing 30-foot
sanitary sewer easement. In 2000, the owner was in the process of selling the property when a
property survey revealed the encroachment of the pool and the house in the existing sanitary
sewer easement. Since that time, there have been numerous meetings and discussions with the
property owners, perspective owners, homebuilders and attorneys to consider the resolution of
this issue. While the home and pool encroach within the existing sanitary sewer easement they
are not in conflict with the location of the existing sanitary sewer line. Based upon our
investigation, it appears that our sanitary sewer line is approximately 8 to 8 '/z feet away from the
corner of the house. Therefore, the abandonment of a portion of the easement where the corner
of the house encroaches would not diminish our ability to access the line if needed. Our main
concern with the encroachment and the approval of the license agreement was to ensure that the
City would not be responsible for any damage to the house or pool because of our future use of
the easement. This is covered in paragraph six. Therefore, staff has no objections to the
continued encroachment into the easement by the house and the pool.
Staff recommends approval of the license agreement between the City of Coppell and David and
Diana Fischer. Staff will be available to answer questions at the Council meeting.
"CITY OF COPPELL ENGINEERING -EXCELLENCE BY DESIGN"
STATE OF TEXAS
COUNTY OF DALLAS
LICENSING AGREEMENT AND AGREEMENT
TO PARTIALLY ABANDON EASEMENT
THIS LICENSING AGREEMENT and AGREEMENT TO PARTIALLY ABANDON
EASEMENT (hereinafter collectively referred to as "AGREEMENT") is made by and between the
City of Coppell, Texas (hereinafter also referred to as the "CITY"), after first having been duly
reviewed and approved by the Coppell City Council, and David J. And Diana R. Fischer (hereinafter
also collectively referred to as "LICENSEES"), acting by and through their authorized
representatives.
WITNESSETH:
WHEREAS, LICENSEES own the real property improvements located at 1002 Forestwood
Lane (Lot 18, Block E Lakewood Estates), being more particularly described in Exhibit "A",
attached hereto and incorporated herein as if fully set forth and for all purposes; and
WHEREAS, constructed on the property is a house, pool and pool deck (hereinafter referred
to as the "IMPROVEMENTS") that lie partially within a 30 foot City sanitary sewer easement,
Volume 75142, page 1390 as shown on the survey plat marked Exhibit "B", attached hereto and
incorporated herein as if fully set forth and for all purposes; and
WHEREAS, LICENSEES have requested that the CITY allow the use and occupancy ofthe
sewer easement for LICENSEE IMPROVEMENTS;
NOW THEREFORE, in consideration of the covenants contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
Purgoses: CITY hereby grants LICENSEES and their successors in interest and assigns an
irrevocable license for the purpose of maintaining and using those portions of the house,
pool, and pool deck (the "PERMITTED IMPROVEMENTS") now encroaching into the
CITY sanitary sewer easement, and being more particularly depicted on Exhibit "B" attached
hereto and incorporated herein as if fully set forth and for all purposes.
2. Term: The term of this Agreement shall be perpetual, and shall not be subject to termination
so long as any ofthe PERMITTED IMPROVEMENTS discussed herein encroach into the
CITY sanitary sewer easement referenced herein, except as provided in paragraphs 7 and/or
11 of this Agreement.
257/9070 #392274 Licensing Agreement rage i
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3. Non-exclusive: T'hisLicense isnon-exclusive and is subject to any existing utility, drainage
or communications facilities located in, on, under or upon the utility easement or property
owned by CITY; to 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 utility easement for facilities presently located within the boundaries of the
easement; and to any existing lease, license, or other interest in the easement granted or
which may be granted by CITY at any time and to any individual, corporation or other entity,
public or private.
4. Environmental Protection: LICENSEES 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. Therefore,
LICENSEES and each and any of their successors or assigns represent and warrant that the
use of the PERMITTED IMPROVEMENTS on 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 they
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 LICENSEES or any of their
successors or assigns. 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 likewise apply herein 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
hazazdous substance, release, solid waste, or disposal which is broader than that specified in
the CERCLA or RCRA, such broader meaning shall apply herein. LICENSEES and each
and any of their successors in interest or assigns shall indemnify and hold CITY harmless
against any and all costs and expenses related to environmental clean up to the property and
surrounding CITY property resulting from LICENSEES' use of the properly under the
License granted herein.
5. Mechanic's Liens not Permitted: LICENSEES and any successors in interest or assigns
shall fully pay all sums owing for all labor and materials purchased for or used in, on or
about the property by such LICENSEES and any successors in interest or assigns, and agree
that they 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 LICENSEES' instance or request.
6. Future Citv Use: Except as provided in paragraph 10 herein, the License conveyed herein
is made expressly subject and subordinate to the right of the CITY to use the portion of the
easement outside the physical limits of the house, pool, and pool deck for any public purpose
whatsoever. In the event that CITY shall, at any time subsequent to the date of this
257/9070 #392274 Licensing Agreement Page 2
~ .~,.
Agreement, at its sole discretion, determine that the relocation, maintenance or removal of
the existing sanitary sewer line shall be necessary or convenient for CITY's use of property,
or for purposes of public health and safety, LICENSEES and any successors in interest or
assigns hereby agree CITY shall not be liable for any cost or claims for structural or cosmetic
damage to the house, pool, or pool deck, because of CITY's activities within the sanitary
sewer easement, or as a result of or related to any utility services provided to LICENSEES.
7. Duration of License: This License shall terminate, be null and void, and be of no further
force and effect in the event LICENSEES or their successors in interest or assigns shall
discontinue or abandon the use of the PERMITTED IMPROVEMENTS, or in the event
LICENSEES or their successors in interest or assigns shall remove the PERMITTED
IMPROVEMENTS from the property, or, in the event that the CITY abandons all of the
properties depicted as a public easement on Exhibit "B".
8. Compliance with Laws: LICENSEES and their successors in interest or assigns agree to
abide by and be governed by all laws, ordinances and regulations of any and all governmental
entities having jurisdiction over the LICENSEES and their successors in interest or assigns.
9. Indemnification: LICENSEES and their successors in interest or assigns shall fully and
completely defend, protect, indemnify and hold the CITY forever harmless against and from
any expense, cost, penalty, damage, or charge, imposed for any violation of any law,
ordinance, rule or regulation arising out of the use of the property by the LICENSEES, or
their successors in interest or assigns, whether or not occasioned by the neglect of
LICENSEES or their employees, officers, agents, representatives, contractors, successors in
interest or assigns or any person or entity in privity with same. LICENSEES and their
successors in interest or assigns shall at all times fully and completely 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 accident or other occurrence
on or about the property causing personal injury, death or property damage resulting from
use of property by LICENSEES or by their successors in interest, assigns, agents, employees,
customers and invitees, or arising out of or from any and all claims or causes of action
resulting from any failure of LICENSEES, their officers, employees, representatives, agents,
contractors, successors in interest or assigns in any respect to comply with and perform all
the requirements and provisions hereof.
10. Partial Abandonment of Easement: The CITY, by this Agreement and upon the express
prior approval of the Coppell City Council, the receipt of which is hereby acknowledged by
the parties herein, also hereby affirms that, strictly subject to the CITY'S receipt of a
satisfactory indemnity and hold harmless agreement for any damage to the house which is
part of the PERMITTED IMPROVEMENTS constructed on the subject property, the CITY
will abandon that certain portion of the sanitary sewer easement described herein, and only
that portion, which abuts a corner of the house constructed on the subject property, in the
boundaries legally described in Exhibit "C" hereto. However, as to said abandoned portion,
257/9070 #392274 Licensing Agreement Page 3
^.
LICENSEES for themselves and for their successors in interest and assigns hereby agree to,
and do, convey an irrevocable license to the CITY in perpetuity and running with the land,
in the same terms and upon the same conditions as specified in paragraphs 1, 2 and 6 in this
Agreement as to the non-abandoned portion of the easement described herein, and such
agreement by LICENSEES is and will be binding on any of their successors in interest or
assigns.
11. Termination: This Agreement may be terminated in any of the following ways:
a. Written agreement of both parties;
b. By CITY upon failure of LICENSEES to perform any of their obligations as set forth
in this Agreement;
c. By the CITY further abandoning any interest in the sanitary sewer easement.
However, the partial abandonment of interest by the CITY described in Paragraph 10
herein shall not be construed as in any way terminating this Agreement.
12. 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 at least thirty days advance
- written notice to the other party of such change of address.
13. 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 costs and reasonable attorney's fees from the non-prevailing
P~Y•
14. Governing Law: This Agreement is governed by the laws of the State of Texas; and venue
for any action to enforce this Agreement or related to same shall be in Dallas County, Texas.
15. Binding Effects: This Agreement shall be binding upon and inure to the benefit of the
executing parties and their respective heirs, personal representatives, successors in interest
and assigns.
16. Entire Agreement: This Agreement embodies the entire agreement between the parties
hereto and supersedes all prior agreements or understandings, if any, relating to the property
and the matters addressed herein and this Agreement may be amended or supplemented only
by written instrument executed by all parties hereto.
257/9070 #392274 Licensing Agreement Page 4
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17. Leval Construction: The provisions of this Agreement are hereby declared and
acknowledged to be covenants running with the property and are fully binding on all
successors in interest, heirs, and assigns of LICENSEES, and particularly upon those who
acquire any right, title, or interest in or to the property or any part thereof. Any person or
entity who acquires any right, title, or interest in or to the property referenced herein or any
part hereof, thereby agrees and covenants to abide by and fully perform all provisions of this
Agreement by virtue of holding any right, title or interest in said property.
EXECUTED this ~~day of 2001.
ACCEPTANCE AND AGREEMENT ACKNOWLEDGED BY:
CITY OF
By:
CITY MANAGER
ATTE~
By: ,~"/
.~. LIBBY BA ,CITY SECRETARY
LI
1
B
DAVID J ISCHER
By: ~~~ ~9~"".,
DIANA R. FISCHER
257/9070 #392274 Licensing Agreement
Page 5
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STATE OF TEXAS §
ACKNOWLEDGMENT
COUNTY OF DALLAS §
This instrument was acknowledged before me on the2 9th day of November , 2001, by
David J. Fischer. P 3 ~ 7 6 /~` / /~/ ~GJ~~ C
_ /Notary Public State o /"f/ Bavaria
My Commission expires: 2 0. 0 7. 2 0 0 9
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
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This instrument was acknowledged before me on the 2 9th day of November , 2001, by
Diana R. Fischer. P 3 ~ 7 7
t _/ /~~, .~.~ ~
Notary Publi ,State of B a v a r i a
~~,--~
My Commission expires: 2 0. 0 7. 2 0 0 9
257/90701!392274 Licensing Agreement
Page 6
3
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the 1~~day of ~_, 2001, by
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Jim Witt, City Manager of the City of Coppell, Texas a Texas municipality, on behalf of said
municipality.
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My Commission expires: ~p - //- 24
257/9070 #392274 Licensing Agreement
Page 7
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SURVEY PLAT
Thla U fo certl[y the[ I Aava, thin dace, aside a careful and accurate survey on the `round of property located at
No. 1002 Fores[wood Lane in the city o[ Coppell; iex•a,
Lot Mo. 1g, Elock Ne. E city Block No. of
Amended Final Plat of Lakewood Estates, '
an addtuon co the City of Coppell, Da] las County, Texas, according [o the plat thereof
recorded Sa Volune 94057, a[ P.q 602, of the Map &ecorda ot~ Dallas -County, Taau.
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ERHIBIT A S B
DESCRIPTION OF EASEMENT
BEING pan of Lot 16, Bock E of Amended Final Plal of Lakewoal Eslales, an addition to the Cily or Coppell, Deltas County, Texas, according to
the plat Ihereol recorded ta Voume 94057, Page 602. Map Records Dallas County, Texas, being pan of a 30' sanitary sewer easement dedicated
in Volume 75142, Paga 1390, Daed Records Dallas County, Texas, and being more particularly desdibed as lollows;
Commerrcuro el an'x- IouM al IDs inlenadion of the Northwest line of Forestwood Lane, (a 50' R.O.W.), with the Northeast line of Village
Parkway, (a 60' R.O. W.), said point Deklg the Southwest corner of said Lot 18;
thence.' Nanh 15 deg. 07 mM. 02 sec. West, with the said Northeast line Village Parkway a distance of 37.72 fee[, a point for corner;
(hence: Nonh 74 deg. 52 rain. 56 sac. East, a distance of 17.54 feet to a building comer at the Place of Beginning;
THENCE: From the Place W Bepinninq, North 02 deg. OS min. West, with the West line of a buikfing, a distance o12D.93 feel to the inlerudion of
the West line of said DuiWinq with Ile Northeast line of said 30' sanitary sewer easement, a 60-d nail set for corner;
THENCE: South 15 deg. 27 min. 04 see. East, wlh the Northeast line of said 30' sanitary sewer easement, a distance of 23.981ee1 to the
inlersedion of the Nonheast Yrle of said sanhary sewer easement, with a South line of said building, a 60-d nail 8e1 for corner;
THENCE: Saulh 67 deg. 65 min. West, with a South line of said building, a distance 011.64 feet to an angle point in said building, a building
corner on wrner;
THENCE: North 45 deg. 51 min. 51 sec. West, wish a South line of said building, a distance of 3.32 feel, to an ell wrner in said building, a
building wrner on corner;
THENCE. South B7 deg. 55 min. West, with a South line of said buildiny, a distance of 1.601eet to the PLACE OF BEGINNING and
CONTAINING 58 sQuaro feet of land.
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FORESTWOOD LAN '°~~'`~'`Bd,E
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s.NYdl IBIkI0Oe1l ilURVEYINO ri tiOC1A TE!
as 011552 Eimt. ...:.................v.. xau s. wrsx•r, au.., rs a:ox
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NI rg1,1r riN,avaG. RN Nw sYM Ik.nNC 1b O fNgM YN w1Y~'Ywr rYfHl~d IM'f wv.1Y YwMOl~mnrftllYl Yc<.pluna el Il,ualic.nN gNmN~. IMquN~4b YN a rap,.. d. ry'~'Ipi
ERBIBIT C