Reserve/PP-AG000411AGENDA REQUEST
April 11, 2000
ITEM # _~__
ITEM CAPTION:
Consider approval of a Right-of-way Use Agreement between Westchase, Ltd., (The Reserve subdivision) and
the City of Coppell authorizing the construction and maintenance of a screening wall along Bethel Road
adjacent to Rosemont Court, and authorizing the Mayor to sign.
S UBMITrED B .~~Ga~~
S TAFFTIcToLE :MM~
and Community Services
A PPRO
BY
C~TY
DA rE
Date of P&Z Meeting: N/A
Decision of P&Z Commission: N/A
Staff recommends approval of this request.
DIR. INITIALS: ~?' FIN. REVIEW:~
Agenda Request Form - Revised 2/99
CITY MANAGER REVIEW:
Document Name: @ROWres
STATE OF TEXAS §
COUNTY OF DALLAS §
RIGHT-OF-WAY USE AGREEMENT
TBlg AGREEMENT is made by and between City of Coppell, Texas (hereinafter referred to as
"CITY") and Westchase, Ltd., a limited partnership, (hereinafter referred to as "LICENSEE")
acting by and through their authorized representatives.
WITNESSETH:
WHEREAS, CITY owns the fight-of-way described within Exhibit "A" and as depicted
in Exhibit "B" which are attached hereto and incorporated herein for all purposes; and
WHEREAS, LICENSEE requests the consent of the CITY, to construct or cause to be
constructed a screening wall ("WALL") within City fight-of-way as shown in Exhibit "B"; and
WilF~REAS, the CITY does not have an immediate need for the use of the fight-of-way
in which LICENSEE's WALL is to be located;
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 use of the CITY fight-of-way as shown on the
map marked Exhibit "B" attached hereto and incorporated herein for all purposes.
2. Term: The term of this Agreement shall be perpetual, subject, however, to termination
by the CITY as provided herein.
3. Non-exclusive: This Agreement is nonexclusive and is subject to any existing utility,
drainage or communications facility 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 fights
presently owned 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 fight-of-way.
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
C'RCRA'), the Texas Water Code and the Texas Solid Waste Disposal Act. LICENSEE
warrants 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 lease"
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
Right-of-Use Agreement 33135
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's 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's 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 WALL 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 WALL so as not to interfere with the CITY 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
the same as quickly as possible or reimburse CITY for the cost of making such required changes.
7. Duration of Agreement: This Agreement shall terminate and be of no further force and
effect in the event LICENSEE shall discontinue or abandon the use of the WALL or in the event
LICENSEE shall remove the WALL from the property or upon termination by CITY whichever
event first occurs.
8. Compliance with laws: LICENSEE agrees to abide by and be governed by all laws,
ordinances and regulations of any and all governmental entities having jurisdiction over the
LICENSEE.
9. Indemnification: LICENSg~g. 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. LICENSI~.F. 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
2
Right-of-Way Use Agreement 33135
of action resulting from any failure of LICENSEE, its 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 Agreement may be terminated or
canceled for any reason whatsoever, LICENSEE, upon request by CITY, shall remove the
WALL 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's encroachment at LICENSEE's sole expense.
11. Termination: This Agreement may be terminated in any of the following ways:
ao
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;
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.
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 acquires 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 hereot~
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.
Right-of-Way Use Agreement 33135
IN WITNESS, THE~OF, the parties
EXECIJTED this rflg7 ay of
ATTEST:
WESTCHASE, LTl).
A Limited Pnrtnershi~
P AC,~
Right-of-Way Use Agreement 33135
STATE OF TEXAS
COUNTY OF DALLAS
LICENSEE'S ACKNOWLEDGMENT
BEFORE ME, the undersigned authority a Notary Public in and for the State of Texas, on
tiffs day personally appeared John E. Papagolos, known to me to be the person and officer whose
name is subscribed to the foregoing instrument and acknowledged to me that the same was the act
of the said, and that he executed the same as the act of said for the purpose and consideration therein
expressed and in the capacity therein.
GIVEN UNDER MY HAND AND
.~-~ ~ ~ ,2000.
My Commission Expires:
SEAL OF OFFICE this the
Notary~blic, State of Texas
~32:-~./,"~ Statr.~ ,:~f Texas
'~"&"~ Corem E~p ,~9-09-2001
day of
Right-of-Way Use Agreement 33135
CITY ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority a Notary Public in and for the State of Texas, on
this day personally appeared Candy Sheehan being the Mayor of the City of Coppell, Texas, known
to me to be the person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said City of Coppell, Texas, and that she
executed the same as the act of said City of Coppell, Texas for the purpose and consideration
therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the /,~g~ day of
' ~/qlota~public, State of Texas
My Commission Expires:
Right-of-Way Use Agreement 33135
Exhibit A
AREA FOR R.O.W. USE AGREEMENT
BEING a 5 foot by 38 foot strip of land situated in the J. Simmons Survey, Abstract No.
1296 in Dallas County, Texas and also being part of Rosemont Court (a 50 foot fight-of-way) as
dedicated by plat of The Reserve, an addition to the City of Coppell as recorded in Volume
99249, Page 23 of the Deed Records of Dallas County, Texas and being more particularly
described as follows:
COMMENCING at a point on the south line of Bethel Road (a variable width fight-of-
way), said point being the most easterly northeast comer of Lot 17X in Block "B" of the above
said The Reserve; Thence N. 88042'24'' W., 352.02 feet along the said south line of Bethel Road
to a point for comer; Thence N. 87020'24'' W., 90.52 feet continuing along the said south line of
Bethel Road to the POINT OF BEGINNING;
THENCE S. 02039'36'' W., 4.25 feet leaving the said south line of Bethel Road to a point
for comer being within the right-of-wa~ of said Rosemont Court;
THENCE N. 87020'24'' W., 38.00 feet within the said right-of-way of Rosemont Court to
a point for comer;
THENCE N. 02039'36'' E., 5.00 feet leaving the said right-of-way of Rosemont Court to
a point for comer;
THENCE S. 87020'24'' E., 38.00 feet to a point for comer;
THENCE S. 02039'36TM W., 0.75 feet to the Point of Beginning and containing 190
square feet of land.
Filed99-004/landscape & screening wall csmL
Exhibit B
OA D
S02'39'56'W
0.75'
The Reserve Addition
DOWDEY, ANDERSON &
(97~) 931-0694 PLANO .
~ ,
ASSOCIATES,INC.
SUIT~ 200
TEXAS 7'5093
JOB NO. ~1~'~I~ -- d