Wynnpage-AG061114AGENDA REQUEST FORM T _ H E C I T Y . o F
COPPELL
4 fi
DEPT: Engineering
DATE: November 14, 2006
ITEM #: 8/C
WORK SESSION Fv/� CONSENT 1:1 REGULAR
ITEM TYPE: CONTRACT /BID or PROPOSAL
ITEM CAPTION:
Consider approval of a license agreement between the City of Coppell and SCI - Wynnpage II L.P. to allow the
construction of a six foot high masonry screening wall within the 15 -foot public alley right -of -way easement in the
Wynnpage Subdivision: and authorizing the City Manager to sign.
GOAL(S):
'i 00
EXECUTIVE SUMMARY:
Approval of this license agreement will allow the construction of a six foot high masonry screening wall within the
15 -foot public alley right -of -way easement that was dedicated with the final plat of Wynnpage Subdivision, Volume
92001, page 2952.
Staff will be available to answer any questions at the council meeting.
FINANCIAL COMMENTS:
RECOMMENDED ACTION:
�f
n
ACTION TAKEN BY COUNCIL:
Staff recommends approval of this license agreement to allow the
construction of the six foot screening wall.
/4 .Li. (� # Wynnpage License Agmt
T H E C 1 T Y O F
COPPELL
MEMORANDUM
TO: Mayor and City Council
FROM: Kenneth M. Griffin, P.E., Director of Engineering and Public Works
DATE: November 14, 2006
REF: Consider approval of a license agreement between the City of Coppell and
SCI - Wynnpage II L.P. to allow the construction of a six foot high masonry
screening wall within the 15 -foot public alley right -of -way easement in the
Wynnpage Subdivision; and authorizing the City Manager to sign.
The City of Coppell has been approached by the developer of the north section of Wynnpage
Plaza concerning the location of a brick screening wall within alley right -of -way of the
Wynnpage Subdivision. The property in question is west of Denton Tap Road and abuts the
north side of the Wynnpage Subdivision. Because the development of the north portion of
Wynnpage Plaza is non - residential and abuts a residential development, the developer is required
to build the brick screening wall.
The original intent was to work with Atmos Energy to locate the brick screening wall along the
southern edge of the existing 50 -foot Lone Star Gas easement that run through this property.
The developer was unsuccessful in obtaining permission from Atmos Energy. Therefore, he
contacted the city about moving the screening wall slightly south of the existing 50 -foot Lone
Star Gas easement and constructing it within the existing 15 -foot alley right -of -way that was
dedicated with the Wynnpage Subdivision plat. It is not unusual to have a brick screening wall
on the far edge of the 15 -foot alley right -of -way. To accomplish the placement of the brick
screening wall within the city's 15 -foot alley right -of -way, a license agreement must be executed
between the developer and the City of Coppell.
The license agreement attached to this agenda item is a typical license agreement has been
utilized numerous times within the City of Coppell to allow for encroachments upon city
property by private improvements. It indemnifies the city from any claims brought by a third
party and provides the city the opportunity to terminate the license agreement if the licensee does
not live up to the requirements of the license agreement. If the licensee performs all requirements
within the license agreement, then the agreement itself is noted to be perpetual. Again, this is
typical of the license agreements that have been executed within the City of Coppell.
The City offers no objections to the approval of the license agreement to allow the encroachment
of a brick screening wall within the city's 15 -foot alley right -of -way in the Wynnpage
Subdivision. Staff will be available to answer any questions at the council meeting.
���� � IIIIIIIIIIIIIIIIIiIIIIIIIiINlllillllllllllllllllllllllllllllilll AGREE 20e��eisssa�
9 PGS
STATE OF TEXAS §
§ LICENSE AGREEMENT
COUNTY OF DALLAS §
THIS AGREEMENT is made by and between City of Coppell, Texas (hereinafter
referred to as "CITY ") and SCI - Wynnpage II, L.P., a Texas limited partnership, by its corporate
General Partner, TGW Silverhawk Capital, Inc., a Texas corporation., (hereinafter collectively
referred to as "LICENSEE ") acting by and through their authorized representatives.
WITNESSETH:
WHEREAS, LICENSEE own the real property known as Lots 2 and 3, Block B
Wynnpage Plaza which is adjacent to the right -of -way of Denton Tap Road, and a Public Alley
within the Wynnpage Subdivision; and
WHEREAS, LICENSEE desires to construct a six foot high masonry screening wall
within the fifteen -foot City right -of -way easement for said public alley dedicated with the final
plat of Wynnpage, Volume 92001, Page 2952, as shown on the attached plat marked Exhibit `A',
and shown on attached Exhibit `B', and incorporated herein for all purposes; and
WHEREAS, LICENSEE has requested the CITY allow the construction and continued
use and occupancy of the Right -of -way 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 an irrevocable license, for the purpose of
construction and maintenance of the screening wall within the City right -of -way easement (the
"PERMITTED IMPROVEMENTS ") and being more particularly depicted on Exhibit `B'
attached hereto and incorporated herein for all purposes. With the exception of the screening
wall, no additional permanent structures shall be allowed within the City right -of -way easement.
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 right -of -way 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 right -of -way for facilities presently located within the boundaries of the right -of -way 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.
License Agreement - Page 1
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 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. 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 Exhibits `A' and
'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 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 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
License Agreement - Page 2
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.
9. 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
right -of -way 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 terminated 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 right -of -way 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.
12. 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
Ply
13. 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.
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 be 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.
License Agreement - Page 3
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
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 ;r'v day of, 2006.
l
CITY OF COPPELL,
JIM VAPMITY MANAGER
ATTEST:
B:
IBBY L, CITY SECRETARY
ACCEPTANCE ACKNOWLEDGED BY:
LICENSEE:
SCI - WYNNPAGE II, L.P., A TEXAS LIMITED
PARTNERSHIP
BY: TGW SILVERHAWK CAPITAL, INC., A
TEXAS CORPORATION, ITS GENERAL PARTNER
By:
JA R, PRESID NT
License Agreement - Page 4
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the _: d of '
2006, by Jim Witt, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of
said municipality.
My Commission Expires:
� - //- 0z
i �
�ot"` LI BBY BALL
Notary Public
.� State of Texas
Comm. Expires 06 -11 -2008
License Agreement - Page 5
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the " of
GC40k , 2006, by Jay S. Turner, President of TGW Silverhawk Capital, Inc., a
Texas corporation, General Partner of SCI - Wynnpage II, L.P., a Texas limited partnership, on
behalf of said entities.
a"r'? WILL HODGE
*: '= MY COMMISSION EXPIRES
; ` June 16, 2010
:4t
NOTARY PUBLIC, Sta of Texas
My Commission Expires:
License Agreement - Page 6
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FILED AND RECORDED
OFFICIAL PUBLIC RECORDS
•, rE oe z�/
— ' John F. Warren, County Clerk
Dallas County TEXAS
January 12, 2007 04:24:10 PM
FEE: $44.00 10010018860