Huntington-AG030923AGENDA REQUEST FORM'
COl'FELL
DEPT: Engineering/Public Works
DATE: September 23, 2003
ITEM #: IO/G
ITEM CAPTION:
Consider approval of a License Agreement between the City of Coppell and Frank and Penelope Ferguson
concerning a proposed encroachment into an existing utility easement on Lot 24, Block A Huntington Ridge
Subdivision (185 Black Oak Circle); and authorizing the City Manager to sign.
GOAL(S):
APPROVED BY
CITY COUNCIL
ON ABOVE DATE
lll__t
Motion to Approve
M - Suh¥
S- Faught
Vote - 7-0
EXECUTIVE SUMMARY:
The license agreement will allow the property owner to utilize a portion of the existing 20' utility easement to
construct a deck.
Staff'will be available to answer any questions at the Council meeting.
FINANCIAL COMMENTS:
D1R. REVIEW: FIN. REVIEW: ~k ~ CM REVIEW:
Agenda Request Foma - Revised 09/02
Document Name: #HuntnRidgeLA-IAR
MEMORANDUM
FROM THE
DEPARTMENT OF ENGINEERING
To~
From:
Date:
RE:
Mayor and City Council
Teresa Turner, E.I.T., Graduate Engineer
September 23, 2003
Consider approval of a License Agreement between the City of Coppell and
Frank and Penelope Ferguson concerning a proposed encroachment into an
existing utility easement on Lot 24, Block A Huntington Ridge Subdivision
(185 Black Oak Circle); and authorizing the City Manager to sign.
Staff has received a request from Mr. and Mrs. Ferguson to allow a portion of their proposed
swimming pool decking to encroach into an existing 20' utility easement. The utility easement
contains an active 8" city owned and maintained sanitary sewer line; however, the proposed
decking will not be constructed over the line.
There are already some encroachments within the easement. There is currently a subdivision
screening wall, a retaining wall, and a small flight of stairs within the easement. The Ferguson's
property is configured such that the construction of a swimming pool would not be possible
without some encroachment into the utility easement. The majority of the new swimming pool
will actually be built in the side yard of the property.
Classic Reflections Pools, the company hired to construct the swimming pool, has agreed to
include a construction joint in the deck at the easement line in the event that maintenance of the
sewer line becomes necessary. The proposed deck material will be washed aggregate concrete.
Staff will be available to answer questions at the Council meeting.
"CITY OF COPPELL ENGINEERING - EXCELLENCE BY DESIGN"
Easement Encroachment Agreement
185 Black Oak Circle
City of Coppell
FROM : CLASSIC REFLECTION POOLS ~ NO. : 9723~9848 Sep. 84 i:~3 10:51AM P2
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City of Coppell I
Dear Teresa,.
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STATE OF TEXAS §
§
COUNTY OF DALLAS §
43?276?
01/16/04
LICENSE AGREEMENT
2724,107
THIS AGREEMENT is made by and between City of Coppell, Texas (hereinafter
refe]Ted to as "CITY") and Frank and Penelope Ferguson (hereinafter collectively referred to as
"LICENSEE") acting by and through their authorized representatives.
WITNESSETH:
WHEREAS, LICENSEE own tile real property improvements located at 185 Black Oak
Circle and being more particularly described in Exhibits "A", attached hereto and incorporated
herein as set forth in full; and
WHEREAS, LICENSEE proposes to construct a swimming pool deck and repair/replace
existing wall and stairs (hereinafter referred to as the "IMPROVEMENTS") within a City utility
easement as shown on the attached survey plat marked Exhibit "B" and incorporated herein for
all purposes; and
WHEREAS, LICENSEE has requested the CITY allow the use and occupancy of the
utility easement for LICENSEE 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:
1. Purpose: CITY hereby grants LICENSEE a revocable license for the purpose of
constructing, maintaining and using the deck (the "PERMITTED IMPROVEMENTS")
encroaching the CITY utility easement and being more particularly depicted on the map marked
Exhibit "A" attached hereto and incorporated herein for all purposes.
2. Term: The term of this License shall be perpetual, subject, however, to termination by
the CITY as provided hereto.
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 easement or property
owned by CITY, any utility or communication company, public or private, to all vested rights
presently oxw~ed by any utility or communication company, public or private for the use of the
CITY easemeut for facilities presently located within the boundaries of the easement 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 ma)' be in violation of any laws pertaining to the health of the environment,
License Agreement - Page 1
I0 08237
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 warrant
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. Future City use: This License is made expressly subject and subordinate to the right of
CITY to use the property for any public purpose whatsoever. In the event that CITY shall, at any
dine 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 the sole cost and expense make or cause to be made such
modifications or relocate said PERMITTED IMPROVEMENTS was 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 CITY and LICENSEE shall promptly
commence to make the required changes and complete them as quickly as possible or reimburse
CITY for the 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. CITY whichever event first occurs;
or, in the event that the City abandons the property depicted as an easement on Exhibit B, then
this agreement shall be of no further effect.
8. Compliance with laws: LICENSEE agree to abide by' and be governed by' all laws,
ordinances and regulations of any and all govcrmnenta[ entities having jurisdiction over the
LICENSEE.
l.icense Agreement - Page 2
08238
9. 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,
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.
10. Action upon termination: At such time as this License may be terminated or canceled
for any reason whatsoever, LICENSEE, upon request by C1TY, shall remove all PERMITTED
IMPROVEMENTS and appurtenances owned by it, situated in, under or attached to the CITY
utility easement and shall restore such property to substantially the condition of the property prior
to LICENSEE' encroachment at LICENSEE sole expense.
11. Termination: This Agreement may be terminated in any of the following ways:
Written agreement of both parties;
By CITY giving LICENSEE thirty (30) days prior written notice;
By CITY upon failure of LICENSEE to perform its obligations as set forth in this
Agreement;
By the City abandoning any interest in the utility easement.
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 notice of such change or 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 cost and reasonable attorney's fees from the non-prevailing
part),.
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.
License Agreement- Page 3
08239
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 ma}, be amended or supplemented only by written instrument
executed by the party against whom enforcement is sought.
17. Recitals: The recitals to this Agreement are incorporated herein by reference.
18. 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 suc~ property.
EXECUTED this --..~F~ dayof ~0~'-~ q,'r"' . 2003.
CITY OF
By:.
ATTESi
C ~TEXAS
~ITT, CITY MANAGER
~'LIB B ~'~ LL,-CI~¥ S'~ETARY
ACCEPTANCE ACKNOWLEDGED BY:
I- /
,ICENS~I 7'\ .....
License Agreement - Page 4
082t 0
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
acknowledged before me on the ~ day of ~
This
instrument
was
2003, by Jim Witt, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of
said municipality.
My Co~nmission Expires:
License Agreement - Page 5
~00~0 10 08241
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OFDALLAS
This instrument was acknowledged before me on the
2003, by Frank Ferguson.
~*a MY COMMISSION EXPIRES
otary Pubh,[, State of Texas
My Commission expires: / I:)//~,AY
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on the
day of ,
2003, by Penelope Ferguson.
MY COMMISSION EXPIRES
II ~...~,, Oct~ 17, 2004
My Commission expires:
License Agreement - Page 6
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EXHIBIT 'B'
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CITY Of COPPELL
255 PARKWAY BLVO
P 0 ~X 478 ~'
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