Vistas of C P2-AG040727AGENDA REQUEST FORM
COFFELL
DEPT: Engineering Department¢~-~e'~
DATE: July27,2004 ¢l~-~[t~ qdq~/g
ITEM #: 9/D
ITEM CAPTION:
Consider approval of a license agreement between the City of Coppell and Jeff Jones concerning encroachments
into an existing drainage easement adjacent to Lot 4, Block F Vistas of Coppell Phase 2A (726 Crestwood Drive);
and authorizing the City IVlanager to sign.
GOAL(S):
IIII
APPROVED BY
CITY COUNCIL
ON ABOVE DATE
Motion to Approve
M - Faught
S - Suhy
Vote - 7-0
EXECUTIVE SUMMARY:
Approval of the license agreement will allow the existing portion of the pool and fence to remain within the City of
Coppell drainage easement.
Staff will be available to answer any questions at the council meeting.
FINANCIAL COMMENTS:
Agenda Request Form - Revised 02/04
Document Name: #CrestwoodLA- lAG
MEMORANDUM
FROM THE
DEPARTMENT OF ENGINEERING
To:
From:
Date:
RE:
Mayor and City Council
Kenneth M. Griffin, P.E., Director of Engineering/Public Works
July 27, 2003
Consider approval of a license agreement between the City of Coppell and Jeff
Jones concerning encroachments into an existing drainage easement adjacent
to Lot 4, Block F Vistas of Coppell Phase 2A (726 Crestwood Drive); and
authorizing the City Manager to sign.
During the week of June 14, 2004, Jeff Jones, property o;vner at 726 Crestwood Drive, visited the
Engineering Department concerning an encroachment of his pool into an existing drainage easement.
Subsequent to that meeting, Mr. Jones wrote a letter to my office on June 23, 2004 requesting that the
city enter into a license agreement to allow the pool to remain within the easement. This apparently has
become an issue due to the fact that Mr. Jones is in the process of selling his home and the encroachment
in the easement is a problem with obtaining an insured owners policy.
Mr. Jones has known about the encroachment into the 25' drainage easement since he refinanced his
house several years ago. At that closing, he was provided a survey dated September 20, 2001 that
sho~ved his pool in the easement. It was Mr. Jones' opinion that the survey was in error; and his lender
closed the loan ~vithout any additional documentation from the city. Mr. Jones has now had an additional
survey performed that still shows the pool within the 25' drainage easement.
The easement was dedicated by plat in 1986 when there was some question whether the property in the
Vistas of Coppell was within the City of Lewisville or Coppell. Obviously, that has since been resolved
in Coppell's favor. In 1988, a 6' x 6' box culvert was installed in the easement to accommodate drainage
from the north side of S.H. 121 south to the levee. So therefore, this is not an easement of which a
portion could be abandoned.
Because the easement cannot be abandoned and the pool encroaches into the easement, the City is once
again placed in the position of needing to approve some type of license agreement to allow the pool to
co-exist within the easement.
The license agreement provided with this agenda item is a revocable license agreement. This means that
it can be terminated by ~vritten agreement of both parties, by the city giving 30 days notice, by the city
upon failure of licensee to perform obligations as set forth in this agreement, or if the city abandons any
interest in the drainage easement encroached within.
The City has only two options in this situation: 1) removal of the pool; or 2) allowing the pool to remain
via some type of license agreement.
Because removal of the pool is not a viable option, I reluctantly recommend the approval of a license
agreement to allow the encroachment of a pool into a 25' drainage easement at 726 Crestwood Drive.
Staff will be available to answer any questions at the council meeting.
"CITY OF COPPELL ENGINEERING b EXCELLENCE BY DESIGN"
June 23, 2004
Kenneth Griffin, P.E.
City of Coppell Engineering
255 Parkway Blvd.
Coppell, TX 75019
Re: Easement at 726 Crestwood Drive
Lot 4, Block F, Vistas of Coppell
Dear Kenneth,
Last week I came in and meet with Keith Marvin and Scott Latta regarding an issue
pertaining to my pool builder apparently crossing into a drainage easement that runs
through our backyard. Through their continued research, Keith and Scott have found out
that this is an easement owned by the City of Coppell.
History: Our pool was built by Premier Pools two years ago. While we were discussing
the installation, I told them to make sure they did not cross the easement. I supplied them
with the builder's survey to use in the placement. After its completion we refinanced our
home and in the process had a survey done. At closing, we were notified by the title
company that the survey indicated that the pool, indeed, crossed into the easement,
however they were able to insure our lender and get the loan closed. At the time, we
considered the possibility of an error on the survey, however, we have had an additional
survey completed and meet with your staff to confirm the encroachment.
We are now in the process of selling our home and it is an issue we must address in order
to be able to obtain an insured owner's policy. We apologize that this has become an
issue and hope that you will be able to assist us.
We are requesting a licensing agreement for the portion of our pool that encroaches into
the easement. If there are any other options, we would be happy to explore those with
you as time is of the essence.
Thank you in advance for your consideration and assistance.
Best Regards,
Jeff Jones
Jeff Jones
Regional Director
FHA Lending - Southwest
AI1BOI1
Arbor Commercial Mo~gage, L£C
5420 LBJ Freeway, Suite 1575
Dallas, TX 75240
(972) 387-6746 Fax: (972) 788-0004
Cell: (214) 695-4456
E-mail: jeff.jones @thearbornet.com
STATE OF TEXAS §
COUNTY OF DALLAS §
LICENSE AGREEMENT
$33.00 I)~p_d
THIS AGREEMENT is made by and between City of Coppell, Texas (hereinafter
referred to as "CITY") and Jeffrey A. Jones (hereinafter collectively referred to as "LICENSEE")
acting by and through their authorized representatives.
WITNESSETH:
WHEREAS, LICENSEE o;vn the real property improvements located at 726 Crestwood
Drive and being more particularly described in Exhibit "A", attached hereto and incorporated
herein as set forth in full; and
WHEREAS, LICENSEE constructed or caused to be constructed a swimming pool and
fence (hereinafter referred to as the "IMPROVEMENTS") within City drainage 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
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
maintaining and using the swimming pool and fence (the "PERMITTED IMPROVEMENTS")
encroaching the CITY easement and being more particularly depicted on the map marked Exhibit
"B" 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 herein.
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 owned by any utility or communication company, public or private for the use of the
CITY easement 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 may be in violation of any laws pertaining to the health of the environment,
License Agreement - Page 1
2m,,2 2 12308
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
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 the sole cost and expense make or cause to be made such
modifications or relocate said PERMITTED IMPROVEMENTS was not to interfere with the
C1TY's or C1TY'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 governmental entities having jurisdiction over the
LICENSEE.
License Agreement - Page 2
q. 12309
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 CITY, shall remove all PERMITTED
IMPROVEMENTS and appurtenances owned by it, situated in, under or attached to the CITY
drainage 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 drainage 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
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.
License Agreement - Page 3
2 h I 2 3 10
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.
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 such property.
EXECUTED this $L~t*-/'/-~ day o f ~.~(~v~.~ ,2004.
By: //i//~
J1M WIT/~.~Y~I~it)f MANAGER
L~, CITY SECRETARY
ACCEPTANCE ACKNOWLEDGED BY:
LICENSEE:
By:~
License Agreement - Page 4
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the _~ ~'~2day of /0/~ ,
2004, by Jim Witt, City Manager of the City of Coppell, Texas, a Texas municipality, un uchalf o
said municipality.
My Comm~on Expires:
Notary Public, State of Texas
,, v. BoN.~',.,,,
.
License Agreement - Page 5
, ~m~,2 2 h 12312
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the ~O~'
2004, by JefffeyA. Jones.
day of~.q-'~lx(
Notary Public, State of Texas
My Commission expires:
License Agreement - Page 6
~2 2 t~ 12 3 13
70.00'
LOT 4
BLOCK F
LOT
ONE
LOT 5
70.00'
CREET!~IOOD DRIVE
I~HiBIT 'B'
Or 4 s.
N
. ::11'.- ..,,,,,:., r .,,,.4''':''''''
0 50 Feet
AREA OF 25 FOOT ; ��
DRAINAGE EASEMENT � �" ., - �
726 C RESTWOOD DRI VL
f
i it
4
VISTAS OF COPPELL
PHASE 2A
` - �!� SUBDIVISION
,�
1.
illit ,
iii 4.a Easement Encroachment Agreement
726 Crestwood Drive
Exhibit "A"
(()PPE_I I
,,,,ee" S\Scott\Arc View\misc_exhibits.apr\Lic.Agmt.
, 726 Crestwood Created in G.I.S.
91eZl