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Pecan Ridge-AG041118AGENDA REQUEST FORM COPPELL EPT: Engineering Department ~t ---,~-.,~ ~ ~_6~,.¢~ DATE: March 23, 2004 ~ ITEM #: 10/D ITEM CAPTION: Consider approval of a license agrcement between the City of Coppell and John Barry concerning encroachments into an existing easement adjacent to Lot 4, Block C of the Pecan Ridge Estates subdivision (339 Tanglewood); and authorizing the City Manager to sign. GOAL(S): APPROVED BY CITY COUNCIL ON ABOVE DATE Motion to Approve M - Tunnell S - Raines Vote - 7-0 EXECUTIVE SUMMARY: Approval of this license agreement will allow the encroachment of an existing pool into an existing 10-foot drainage and utility easement to remain. Staff will be available to answer any questions at the Council meeting. FINANCIAL COMMENTS: Agenda Request Form - Revised 02/04 Document Name: #LicAgmt339Tanglewoodq AG MEMORANDUM FROM THE DEPARTMENT OF ENGINEERING To: From: Date: RE: Mayor and City Council Kenneth M. Griffin, P.E., Director of Engineering/Public Works March 23, 2004 Consider approval of a license agreement between the City of Coppell and John Barry concerning encroachments into an existing easement adjacent to Lot 4, Block C of the Pecan Ridge Estates subdivision (339 Tanglewood); and authorizing the City Manager to sign. Mr. and Mrs. Barry recently contacted the City concerning the encroachment of their pool into an existing 1 O-foot drainage and utility easement on their property at 339 Tanglewood Lane. Mr. and Mrs. Barry are in the process of selling their property and relocating out of state. Because of the encroachment of the pool in the drainage easement, the realtor has some concern whether or not the property could be marketed. As is often the case, the pool was built after the construction of the house and installation of the fence, within the confines of the fenced backyard. However, it did place the pool squarely within the city's 10-foot drainage and utility easement. The city has a 42" RCP stormdrain within the drainage and utility easement. Therefore, abandonment of the easement or a portion of the easement is not an option. The pool and the 42" RCP stormdrain currently co-exist within the easement and to remove the pool from the easement is mostly likely not a realistic approach. The Barry's purchased the property in 2003 and at that time the pool and encroachment were existing. As a matter of fact, unknown to the city, apparently this issue surfaced in 1997. At that time, there was a letter written by Ron Robertson, with Robertson Pools and Spas, to the realtor, Mike Rohland, concerning the encroachment at 339 Tanglewood and stating that Robertson Pools would be responsible for any repairs to the pool that may be caused by any repair work to the stormdrain line within the easement area. The letter from Mr. Robertson was written in response to a survey of the property on November 17, 1997, which showed the encroachment of the pool within the existing easement. The license agreement before you this evening is an irrevocable license, which will allow the pool to remain within the existing easement perpetually. In paragraph i0 of the license agreement there are three instances where the agreement could be terminated. Those include a) written agreement o£both parties; b) by the city upon failure of the licensee to perform obligations; and c) by the city abandoning any interest in the existing utility and drainage easement. "CITY OF COPPELL ENGINEERING - EXCELLENCE BY DESIGN" Because of the existing 42" RCP, option 'c' would never be invoked. Therefore, there is not a foreseeable situation which would cause the pool to be removed from the easement or the easement to be abandoned. Staff recommends approval of the license agreement between the City of Coppell and John Barry to allow for the encroachment of an existing swimming pool within an existing 1 O-foot drainage and utility easement. Staff will be available to answer any questions at the Council meeting. "CITY OF COPPELL ENGINEERING - EXCELLENCE BY DESIGN" 11721/9? FRI 14:29 FA~ 11/21/1997 18:57 9723935828 PPbe . on Pools a Spas November 2~, le97 Mr. Michael Rohland 500 S. Denton Tap Coppell, TX Dear Mr. Rohland: lief: Property, Lot 4, BlOC~ C, Pecan Ridge, 339 Tertgle Wood, Coppell, TX As per our conversation of 11/21187, Robel'~en Pools, Inowill agree to pay for any and all repairs to the swimming Ixml Ioca[~:l at tile above addreaa that may be caused by any repair work to the ston'n drain line located in the eaaement area. Roe Rebert~n 569-A S. coppeIIPP~d · CoppeE, T~os 75019 · (972) 393-2152 · Fo.x(972) 393-6244 NOU 21 '97 [3:J4 PAGE.02 t,'c~ ELgG eSE J£S uunQ u~^~>t HgS:t,O ~0 q~ JdU STATE OF TEXAS § COUNTY OF DALLAS § 4741~17 11/1B/04 LICENSE AGREEMENT 3139852 $27.00 Deed TttlS AGREEMENT is made by and between City' of Coppell, Texas (hereinafter referred to as "CITY") and John Barry (hereinafter collectively referred to as "LICENSEE") acting by and through their authorized representatives. WITNESSETH: WHEREAS, LICENSEE own the real property improvements located at _~9 Tanglewood and being more particularly described in Exhibit "A", attached hereto and incorporated herein as set forth in full; and WHEREAS, there currently exists on LICENSEE's property a swimming pool and fence (hereinafter referred to as the "LMPROVEMENTS") within City right-of-way easement as shown on the attached sup,'ey plat marked Exhibit "B" and incorporated herein for all purposes; and WHEREAS, LICENSEE has requested the CITY allow the usc 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, thc parties agree as follows: 1. Purpose: CITY hereby grants LICENSEE an irrevocable license, for the purpose of maintaining and using the swimming pool and fence (the "PEP~MITTED 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 suhject to any existing utility, drainage or communications facilities located in, on, under or upon the easemeot 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 (PITY easement for i~acilities 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, corporalion or other entity, public or private. 4. Environmental Protection: LICENSEE shall not use or permit the use of the property for any purpose that mav be in violation of any laws pe~.aining to the health of thc environment, including without limitation, the comprehensive environmental response, compensation and License Agreement - Page 1 07206 424[3 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 RC1LA; 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. 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 PER~MITTED LMPROVEMENTS or in the event LICENSEE shall remove the PERMITTED IMPROVEMENTS from the property or upon termination by CITY, as described in paragraph 10, 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. 7 Compliance with laws: LICENSEE agree to abide by and be governed by all laws, ordinances and regulations of any and ail 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 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 ail 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 willfuI misconduct or negligence. LICENSEE shall at all times defend, protect, indemnify and hold CITY hmTnless against and from any and all loss. cost, License Agreemenl - Page 2 07207 424[3 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. LICENSEE shall be responsible for all damage caused from the need to repair or access the line. 9. Action upon termination: At such time as this License may be terminated or canceled, LICENSEE, upon request by CITY, 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. 10. Termination: This Agreement may be ternainated in any of the following ways: a. Written agreement of both parties; b. By CITY upon failure of LICENSEE to perform its obligations as set forth in this Agreement; c. By the City abandoning any interest in the utility and drainage easement. 11. 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. I2. Attorney's fees: Any signatory to this Agreement, who is the prevailing party m any legal proceeding against any other signatory brought onder or with relation to this Agreement shall be entitled to recover court cost and reasonable attorney's fees from thc non-prevailing party. 13. Governing law: This Agreement is govemed by the laws of the State of Texas; and venue for any action shall be in DaUas County, Texas. 14. 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. 15. 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 bc amended or supplemented only by written instrument executed by the party against whom enforcement is sought. 16. Recitals: The recitals to this Agreement are incorporated herein by reference. 17. 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 License Agreement - Page 3 07208 42413 person who acquires any right, title, or interest in or to the property, or any part hereof, thereby agrees and covenants to abide b5 and fully perform the provisions of this agreement with respect to thc right, title or interest in such property. EXECUTED this Z4--~ayof .[7?~t~2~L/_/-V'] ,2004. c,TY o coPP .?,,s J~T, CITY MANAGER ATTES~ , : ~I~7~7d, CItY SEC~ARY ACCEPTANCE ACKNOWLEDGED BY: LICENSEE: JOHN BAP, RY ~ Licensc Agreement - Page 4 07209 424i3 CITY'S ACKNOWLEDGMENT STATE OF TE,~L~,S § COUNTY OF DALI,AS § This instrument was acknowledged before me on the ')~' day of/ (,~,' '- ~:,' 2004, by Jim Witt, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of said municipality. My Cormnission Expires: ry iic, State of yexas License Agreement - Page 5 072 I'0' 42413 ACICNOWLEDGMENT STATE OF TEJ'C~S COUNTY OF DALI.AS This instrument was acknov, ledged before me on the ~.~'/ day of ;5 ',, t:. ~_, 2004, by John Barry. ~'~' ' ~,?,. PAULA J. CROCKER ~': ~q~': ':': II ,i }~',.-'~ October 17, 2004 Notary Public,!State of Texas My Commission expires: After recording return to: Paula Crocker City of Coppell P.O. Box 9478 Coppell, TX 75019 License Agreement - Page 6 42413 GF# 635994 -VR LEGAL DESCRIPTION Being Lot 4, Block c of Pecan Ridge Estates, an addition to the City of Coppell, Dallas County, Texas, according to the plat thereof recorded in Volume 91226, Page 4401, Map Records, Dallas County, Texas, together with Certificate of Correction recorded in Volume 91242, Page 5942, Deed Records, Dallas County, Texas. , 0721!2. EXHIBIT A r6 I c~_ 4 o~ R = 695 40' 14 ~ 13o ~ 12 )D _eL 35' 5 ~ 6 2~ ~o o~o~9 7 8 8~ = 6 ~ 7 ~ ~0 uTt R,585' , ,,,~. 29 5V .~ ~ 2 9 8o~ I0 o_., _~- 87.¸ 124.23,' ~80' ~9' 4~ 9 ~0 18 04'E ~.T__15- 8 t -3, ,NDY FINAL PLAT PECAN RIDGE ESTATES AN ADOITION TO THE CITY OF COPPELL SIBERED HENDERSON SURVEY ABST 629 DALLAS COUNTY, TEXAS OCTOBER 199i SCALE :1", I00' OWNER EVERFINE /GATEWAY PARTNERSHIP '~----~ r075 I MAPLERIDGE DRIVE DALLAS , TEXAS (214) 349-4095 75238 DA N ~6250 DAL L AS (214) 931-0694 M DOWDEY 8, ASSOCIATES, INC. PARKWAY SUITE IO~l KE se DALLAS , TEXAS VOL 912&6, PO 44 or 75248: , ;q, w.~a: ~0-044 F~XHIBIT A-Il C2 26'01 C3 13'51 C4 12'10 C5 27'45 C6 16'31 C7 7'27 C8 19'15 C9 10'08 C10 11'13 Cll 19' C12 7' C13 C14 13' C15 19' C16 5' C17 11' C18 C 20 4 48" 08" 59" 22" 09" 18" ~5 09' ~7 39' 29 10' 39'07" 15'09" 3~'0~" 13'57" 37'50". ~0'26" °~4' 45' 220 220 220 305 305 1050 550 1050 745 745 440 1160 1160 1160 440 1150 $60. 560 O0 O0 O0 O0 O0 O0 O0 O0 O0 O0 O0 O0 O0 O0 O0 O0 O0 O0 00' 99 96 53 23 46 73 147 81 87 95 136 73 184 81' 185 79 146 05' 287 30' 97 42 13' 276 39 389 78 113 39' 86 26' 113 01 zo 4~' 20 76 50 86 26 75 23 45 44 28 68 46 93 28 93 14 73 26 145 02 48 57 21 08 138 85 196 75 56 74' 43 27 56 55' 40.79' 4~ 50' EXYIIBIT A-2 SCRVEY PLAT JIMMY W. POGUE, INC. No 339 TANGLEWOOD LANE mlhec,yof COPPELL recorded m Votume 9~3~6 ...... Page _~.~_ ~p_ Rect~ds DALLAS TWO STORY BRICK · 339 TANGLEWOOD LANE PAUL A. fIIDALGO REGISTERED PROFESSIONAL LAND SURVEYOR NO. 4490 EXHIBIT B GF No. 103-790 SURVEY AFFIDAVIT THE STATE OF TEXAS COUNTY OF DALAS BEFORE ME, the undersigned authority, on the day personally appeared Robert D. O'Connor and Caroline M. O'Connor hereinafter called "Owner(s)", who make the following statements under oath: I/We am/are the owner(s) of the Property described on the attached plat or survey hereinafter referred to as the "Survey". Owner(s) know of their own personal knowledge that the Survey is a true and correct copy of the most recent survey done on the ground of the property shown on the Survey (the "Property"), From the date of the Survey to the date of this Affidavit, Owner(s) have not granted any easements over, under or across the Property, nor have Owner(s) made any additional improvements either to the real property or the existing improvements which would alter the dimensions of the improvements as shown on the Survey, and that any and all repairs to existing fences and improvements have followed the same lines as shown on the Survey. Owner(s) understand that the term "additional improvements" includes such things as pools, spas, carports, decks, patios, portable buildings, sheds, outbuildings, gazebos, walls, planters, room additions or extensions, or any other improvements which have become attached to the real property or other improvements. Owner(s) understand that Stewart Guaranty Title Insurance Corporation, and its issuing agent Reunion Title are relying on this Affidavit and the Survey as if it were a current survey of the Property to provide survey coverage in any Policy of Title Insurance being issued in connection with Caroline M. O'Connor this transaction. EXECUTED on this the 24 day of May 2002. Robert D. O'Connor SWOI~N A_ND SUBSC~B~D Notary Public on this by the above Affiant before me, the undersigned day of May 2002.