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HomeMy WebLinkAboutResolution No. 2014-075 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2014- 01 5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE A LICENSE AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND WEBBER, L.L.C. FOR USE OF CITY PROPERTY LOCATED AT 6001 MAIN STREET DURING CONSTRUCTION OF F.M. 423; PROVIDING AN EFFECTIVE DATE NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Council of the City of The Colony, Texas, hereby approves a License Agreement by and between the City of The Colony and Webber, L.L.C. for use of city property located 6001 Main Street for a batch plant, field offices, and staging area during the construction of F.M. 423, with the terms and conditions as stated therein. Section 2. That a true and correct copy of the Agreement is attached hereto and incorporated herein as "Exhibit A". Section 3. That the Mayor is authorized to execute a License Agreement with Webber, L.L.C. for use of city property located at 6001 Main Street, with a termination date of December 31, 2017. Section 4. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this 21st day of October, 2014. e-v / CoY7'ity oj,; olny, Te ATTES �''',,,OF 0/024AD Christie Wilson, TRMC, City Secretary = W APPROVED AS TO FORM: ..................„‘‘‘‘‘% e,. Jeff Moore, ity Attorney STATE OF TEXAS § § LICENSE AGREEMENT COUNTY OF DENTON § This License A reement (hereinafter referred to as the "License Agreement") is granted on the sfday of , 2014, by the City of The Colony, Texas, a Texas home-rule municipality (hereinafter referred to as the "City")to Webber, L.L.C. , a Texas Limited Liability Company(hereinafter referred to as "Licensee"). RECITALS: WHEREAS, City is the owner of an approximately 12.250 acres tract of land situated in the B.B.B. and C.R.R. Co. Survey, Abstract No. 181, City of The Colony, Denton County, Texas, and generally located at 6001 Main Street (FM 423), The Colony, Denton County, Texas, and as described and/or depicted in Exhibit A of this License Agreement, which is attached hereto and incorporated herein for all purposes (hereinafter referred to as the "Licensed Property"); and WHEREAS, Licensee desires to use the Licensed Property for the purposes set forth more fully below; and WHEREAS, the City through this License Agreement desires to convey to Licensee a non-exclusive license for use of the Licensed Property for the purposes set forth more fully below; and WHEREAS, the City finds and determines the granting of this License Agreement is in the best interest of the City of The Colony, Texas. NOW, THEREFORE, for and in consideration of the foregoing premises and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, City and Licensee covenant and agree as follows: SECTION 1. FINDINGS INCORPORATED. The foregoing recitals are hereby incorporated into the body of this License Agreement and shall be considered part of the mutual covenants, consideration and promises that bind the parties. SECTION 2. TERM. This License Agreement shall be effective as of the Effective Date of this License Agreement, and shall continue thereafter until December 31, 2017, unless terminated sooner under the provisions hereof. SECTION 3. DEFINITIONS. The following words shall have the following meanings when used in this License Agreement. (a) City. The word "City" means the City of The Colony, Texas, a Texas home-rule municipality, whose address for the purposes of this License Agreement is 6800 Main Street,The Colony,Texas 75056. (b) Effective Date. The words "Effective Date" mean the date of the latter to execute this License Agreement by and between Licensee and City. (c) Event of Default. The words "Event of Default" mean and include any of the Events of Default set forth below in the section entitled"Events of Default." (d) License Agreement. The word "License Agreement" means this License Agreement, together with all exhibits and schedules attached to this License Agreement from time to time, if any. (e) Licensee. The word "Licensee" means Webber, L.L.C. , a Texas Limited Liability Company , and its successors, whose address for the purposes of this License Agreement is 1900 Westridge Suite 100, Irving, Texas 75038 . (f) Licensed Property. The words "Licensed Property" means the approximately 12.250 acres tract of land situated in the B.B.B. and C.R.R. Co. Survey, Abstract No. 181, City of The Colony, Denton County, Texas, and generally located at 6001 Main Street (FM 423), The Colony, Denton County, Texas, and as described and/or depicted in Exhibit A of this License Agreement, which is attached hereto and incorporated herein for all purposes. (g) Permitted Purposes. The words "Permitted Purposes" mean use of the Licensed Property for the purpose of constructing, installing, completing, inspecting, operating, maintaining, using, repairing, modifying, reconfiguring, and removing a temporary batch plant. (h) Term. The word "Term" means the term of this License Agreement as specified in Section 2 of this License Agreement. SECTION 4. LICENSE. (a) Licensed Property. (1) The City, being the present owner of the Licensed Property, for and in consideration of the foregoing, which is expressly made a part of this License Agreement, and in consideration of approval of its request, is hereby gives authorization and grants to Page 2 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM Licensee during the Term of this License Agreement a non-exclusive license to use the Licensed Property for the purpose of constructing, installing, completing, inspecting, operating, maintaining, using, repairing, modifying, reconfiguring, and removing a temporary batch plant (hereinafter referred to as the "Permitted Purposes"). Licensee acknowledges that Licensee has inspected the Licensed Property, and on the basis of such inspection Licensee accepts the Licensed Property, and any improvements situated thereon, as suitable for the purposes for which the same are licensed, in their present condition. (2) The City conveys a non-exclusive license to the Licensee to use the Licensed Property in an as-is condition and does not make any representations regarding the suitability of the Licensed Property for Licensee's requirements or the Permitted Purposes. (3) Neither Licensee nor the Licensee's affiliates, employees, agents, or representatives shall cause (i) any activity to occur in respect of the License Agreement or the Licensed Property that constitutes waste or public or private nuisance, (ii) any explosive substances or materials to be stored, released, generated, placed, handled or used within the Licensed Property, (iii) any trailers or recreational vehicles to be parked within the Licensed Property without the prior express written consent of the City, or (iv) any party to live or reside within the Licensed Property. (4) Without the prior written consent of City, neither Licensee nor the Licensee's affiliates, employees, agents, or representatives shall cause (i) any buildings, structures or other improvements to be constructed, erected or installed within the Licensed Property, or (ii) any heavy machinery or equipment to be operated or stored within the Licensed Property except with respect to any heavy machinery or equipment normally and customarily used in performing the Permitted Purposes. (5) Licensee shall keep (and shall cause the Licensee's affiliates, employees, agents, or representatives to keep) the Licensed Property free from and shall promptly discharge any liens arising from any work performed, material furnished, obligations incurred or any other thing done or permitted by Licensee and/or the Licensee's affiliates, employees, agents, or representatives in respect of the License Agreement or the Licensed Property; provided that Licensee (or a Licensee party) may dispute any such lien so long as Licensee (or such Licensee party) first posts a bond for such lien in the amount required under and otherwise in accordance with all applicable laws. (6) If Licensee fails to comply with or defaults under any obligation set forth in this Section 4 of the License Agreement during the Term of this License Agreement, then, after sending written notice to Licensee describing in detail the failure of Licensee to comply with any obligation under this License Agreement and Page 3 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM allowing for a ten (10) day cure period, City may (but shall not be obligated to) cure such failure at Licensee's sole cost and expense, and Licensee shall, upon demand, pay to City all reasonable costs incurred by City during the Term of this License Agreement in curing such failure together with interest thereon at the rate of ten percent(10%)per annum from the date so paid until fully reimbursed. (b) Maintenance of Licensed Property. (1) During the Term of this License Agreement, Licensee shall, at its sole cost and expense, maintain the Licensed Property in good condition, working order and repair. Without limiting the generality of the foregoing sentence, Licensee shall keep the Licensed Property clean and free from any trash, rubbish, debris, waste, weeds,brush and/or explosive materials. (2) During the Term of this License Agreement, the City shall not have an obligation to the Licensee to (i) maintain, improve, alter or repair the Licensed Property, or (ii) furnish any utilities to the Licensed Property, including but not limited to electricity, gas, water or telephone service. Licensee shall pay the cost of any such utilities furnished to the Licensed Property. (3) If Licensee fails to comply with or defaults under any obligation set forth in this Section 4 of this License Agreement during the Term of the License Agreement, then, after sending written notice to Licensee describing in detail the failure of Licensee to comply with any obligation under this License Agreement and allowing for a ten (10) day cure period, City may (but shall not be obligated to) cure such failure at Licensee's sole expense, and Licensee shall, upon demand, pay to City all reasonable costs incurred by the City in curing such failure together with interest thereon at the rate of ten percent (10%) per annum from the date so incurred until fully reimbursed. (c) Improvement of Licensed Property. (1) City may not allow the Licensed Property to be used for the Permitted Purposes until Licensee has obtained the permits and approvals and has provided the City a copy of the storm water pollution prevention plan ("SWP3") required for the Permitted Purposes. (2) Licensee shall not cause or permit any further alterations, modifications, or any other improvements (each, an "Alteration") to be made, constructed or installed within the Licensed Property without the prior written consent of City, with such approval not to be unreasonably withheld, conditioned or delayed. (3) If City grants its written consent to any Alteration, Licensee shall not cause or permit work to begin with respect to such Alteration unless and until City has reviewed and granted written approval of all plans and specifications for such Page 4 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM Alteration, with such written approval not to be unreasonably withheld, conditioned or delayed. Upon City's written approval, such Alteration shall be deemed to be a"Permitted Alteration." (4) Any work performed in connection with any permits and approvals and/or Permitted Alteration shall be performed in accordance with all of the terms and conditions contained in this License Agreement, including but not limited to the terms and conditions set forth in this Section 4 of the License Agreement. Any approval by City is for the sole benefit of City and neither Licensee nor any other party may rely on such approval by Licensee for any purpose whatsoever, including, but not limited to, whether the plans and/or specifications meet or exceed customary industry standards or any applicable laws. (d) Rent. In consideration for this License Agreement, Licensee shall pay to City the sum of three thousand dollars ($3,000.00), per month during the Term of this License Agreement. One (1) such monthly installment shall be due and payable on or before the Effective Date of this License Agreement, and a like monthly installment shall be due and payable on the first (1st) day of each succeeding calendar month during the Term of this License Agreement. If rental Commencement Date is other than the first (1St) of the month the rental rate will be prorated. (e) City Reservation of Right to Use and/or Convey Licensed Property. City hereby reserves the right, during the Term of the License, without any requirement of notice to or consent of Licensee, to (i) grant, sell, lease, transfer, option, convey or dispose of all or any portion of or interest in the Licensed Property, (ii) grant any easement(s), servitude(s), restriction(s), mortgage(s), deed(s) of trust, security instrument(s), oil/gas and hydrocarbon lease(s), operating agreements, surface and subsurface lease(s), license(s), encumbrance(s) or lien(s) affecting all or any portion of or interest in the Licensed Property, (iii) access the lift station located on the Licensed Property; and/or (iv) develop the Licensed Property; provided, however, none of the foregoing may unreasonably interfere with the use of the Licensed Property by Licensee for the purposes set forth within this Section 4 of the License Agreement during the Term of this License Agreement. (f) Taxes. Licensee shall be liable for all taxes levied or assessed against the Licensed Property arising from Licensee's Permitted Purposes, if any. SECTION 5. TERMINATION OF LICENSE. City may terminate the License at any time in the event of any default by Licensee and the failure of Licensee to cure such default on or before ten (10) days after delivery by City of written notice of such default to Licensee in accordance with the notice provisions set forth below, whereupon the License shall immediately and automatically terminate without the necessity for any further action by either Party. Page 5of14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM SECTION 6. INDEMNITY CLAUSE. CITY SHALL NOT BE LIABLE TO LICENSEE OR TO LICENSEE'S EMPLOYEES, AGENTS, INVITEES OR VISITORS, OR TO ANY OTHER PERSON, FOR ANY INJURY TO PERSONS OR DAMAGE TO THE LICENSED PROPERTY ON OR ABOUT THE LICENSED PROPERTY OR ANY ADJACENT AREA OWNED BY CITY CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF LICENSEE, LICENSEE'S • EMPLOYEES, SUBTENANTS, AGENTS, INVITEES, LICENSEES OR CONCESSIONAIRES OR ANY OTHER PERSON ENTERING THE LICENSED PROPERTY UNDER EXPRESS OR IMPLIED INVITATION OF LICENSEE, OR ARISING OUT OF THE USE OF THE LICENSED PROPERTY BY LICENSEE, AND THE CONDUCT OF LICENSEE'S BUSINESS, OR ARISING OUT OF ANY BREACH OR DEFAULT BY LICENSEE IN THE PERFORMANCE OF LICENSEE'S OBLIGATIONS UNDER THIS LICENSE AGREEMENT OR ARISING OUT OF ANY RELEASE OF HAZARDOUS MATERIALS BY LICENSEE, LICENSEE'S EMPLOYEES, AGENTS, INVITEES OR ANY OTHER PARTY UNDER THE CONTROL AND DIRECTION OF INVITEE; AND LICENSEE HEREBY AGREES TO INDEMNIFY AND HOLD CITY HARMLESS FROM ANY LOSS, EXPENSE OR CLAIMS ARISING OUT OF SUCH DAMAGE OR INJURY. LICENSEE SHALL NOT BE LIABLE FOR ANY INJURY OR DAMAGE CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF CITY, OR CITY'S EMPLOYEES OR AGENTS, AND TO THE EXTENT ALLOWED BY LAW, CITY AGREES TO INDEMNIFY AND HOLD LICENSEE HARMLESS FROM ANY LOSS, EXPENSE OR DAMAGE ARISING OUT OF SUCH DAMAGE OR INJURY. SECTION 7. INSURANCE. (a) At all times during the term of this License Agreement, Licensee shall maintain in effect the following insurance coverages in amounts not less than the following minimum limits: (i) workers' compensation insurance and employer's liability insurance in accordance with statutory requirements and limits, (ii) comprehensive general liability insurance, including but not limited to products-completed operations and contractual liability coverage, with limits of not less than $1,000,000.00 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage, and (iii) automobile liability insurance, with limits of not less than $1,000,000.00 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage. The City shall expressly be named as an additional insured. Such insurance shall specifically identify this License Agreement and contain express conditions that the City is to be given written notice at least thirty (30) days prior to any modification or termination of coverage. Such insurance coverage shall be primary to and not contributing with any other insurance and shall contain a waiver of subrogation in favor of the Licensee. (b) The obligation to maintain the insurance coverages set forth in this Section 7 of the License Agreement shall not in any way limit or diminish any of Licensee's other obligations,responsibilities or liabilities under this License Agreement. Page 6 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM SECTION 8. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this License Agreement: (a) Amendments. This License Agreement constitutes the entire understanding and agreement of the parties as to the matters set forth in this License Agreement. No alteration of or amendment to this License Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. (b) Applicable Law and Venue. This License Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Denton County, Texas. Venue for any action arising under this License Agreement shall lie in the state district courts of Denton County, Texas. (c) Attorney's Fees. In the event any person initiates or defends any legal action or proceeding to enforce or interpret any of the terms of this License Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable costs and attorney's fees (including its reasonable costs and attorney's fees on any appeal). (d) Binding Obligation. This License Agreement shall become a binding obligation on the signatories upon execution by all signatories hereto. Licensee warrants and represents that the individual or individuals executing this License Agreement on behalf of Licensee has full authority to execute this License Agreement and bind Licensee to the same. The City warrants and represents that the individual executing this License Agreement on its behalf has full authority to execute this License Agreement and bind it to the same. (e) Caption Headings. Caption headings in this License Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of the License Agreement. (f) Counterparts. This License Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document. (g) Force Majeure. It is expressly understood and agreed by the parties to this License Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, fire or other casualty, or court injunction, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such obligation or requirement shall be extended for a period of time equal to the period such party was delayed. Page 7 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16AM (h) No Assignment. This License Agreement is personal to Licensee. It is non-assignable without the City's prior written approval and any assignment without the City's approval of this License Agreement will automatically terminate the license privileges granted to Licensee hereunder. (i) No Third Party Beneficiaries. The provisions of this License Agreement are solely for the benefit of the City and Licensee and are not intended to create or grant any rights, contractual or otherwise, to or in favor of any other person or entity. (j) Notices. Any notice or other communication required or permitted by this License Agreement (hereinafter referred to as the "Notice") is effective when in writing and (i) personally delivered either by facsimile (with electronic information and a mailed copy to follow) or by hand or (ii) three (3) days after notice is deposited with the U.S. Postal Service, postage prepaid, certified with return receipt requested, and addressed as follows: if to Licensee: Webber 1900 Westridge Suite 100 Irving, Texas 75038 Attn: Josh Goyne Telephone: 469-242-6408 if to City: The City of The Colony, Texas 6800 Main Street The Colony, Texas 75056 Attn: Troy Powell, City Manager Telephone: (972) 624-3102 with copy to: Jeff Moore Brown and Hofmeister, L.L.P. 740 East Campbell Road, Suite 800 Richardson, Texas 75081 Telephone: (214) 747-6100 Facsimile: (214) 747-6111 (k) Severability. The provisions of this License Agreement are severable. If any paragraph, section, subdivision, sentence, clause, or phrase of this License Agreement is for any reason held by a court of competent jurisdiction to be contrary to law or contrary to any rule or regulation have the force and effect of the law, the remaining portions of the License Agreement shall be enforced as if the invalid provision had never been included to the extent it does not frustrate the intent of this License Agreement. (1) Time is of the Essence. Time is of the essence in the performance of this License Agreement. Page 8 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM [The Remainder of this Page Intentionally Left Blank] Page 9 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM IN WITNESS WHEREOF, the parties hereto have executed this License Agreement on the day and year first above-written. CITY: CITY OF THE COLONY,TEXAS, A Texas home-rule municipality ( 1 ,- ) J McCou , Ma or ate Signed: a ! ":,4 w ( •,iiii ATTEST: Christie Wilson, ity Secretary APPROVED AS TO FORM: `4111a Jeff Mo•r: City Attorney `,.., LICENSEE: WEBBER a Texas Limited Liability Company, By: Name: Jo Gown Title: North Texas Vice President Date Signed: October 10, 2014 Page 10 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM CITY'S ACKNOWLEDGEMENT STATE OF TEXAS COUNTY OF DENTON LI This instrument was acknowledged before me on the 02,34 day of , 2014, by Joe McCourry, Mayor of the City of The Colony, Texas, a Texas home-rule municipality, on behalf of said municipality. ,41,01,64 Notary Public, Ste of Texas (Seal) AMY PIUKANA I My Commission Expires January 8,2017 LICENSEE'S ACKNOWLEDGEMENT STATE OF TEXAS COUNTY OF (1.tko,.S This instrument was acknowledged before me on the day of , 2014, by _\c5Sk.N. rva_._ , itaktoinciA, of \MI_V ..tr ILLC- , a Texas L.L C. , on behalf of sad Cimet p&ar-1 Aix MPAA, ROBIN POWELL V My Commission holm Notary Public, State of Texas April 29,2017 Id° Page 11 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM Exhibit A Licensed Property Page 12 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM • � . �. . t 'VDt'743 PAc443 - • EXHIBIT A : Beinga tract of land situated dintheBBS and C.R ,R. Company Survey, Abstract No. 181, Denton CountY, Tes and.being . part of a 220.02 dare tr .o •1 act f and de a ribed as F • g C First Treat in' t peed to Five Fifty Lan�1 Company,'Robert'S. Folsom and Henry H. . Dickerson, Jr..and recorded in the Deed Records of'Denton County;+,.;.;.' 'Texas, and being more particularly described as follows: • BE01NNINC at•the. southeast Corner-of said'.220.02 acre tract.. ' - in the east line of said B.B.B. and•C.R.R. Company Survey, a• ' U.S.A. Concrete Monument`B-185-2.; . - ITHENCE South 89,° 18' 54" West,•along:the•aouth line of said' ' • 220:02 acre tract, 260.00 feet:to a U.S.A. Concrete. Monument. -:..-..• ' •3-160-12;• - • . THENCE 24° 36' 06" West, 381.00 feet to,a U.S.A.'Cone ete - Monument B-160-13; . ' THENCE North 00° 34' 06" West, 250.00 feet toa U.S.A.-, .` . Concrete.Monument B-160-14;' ' THENCE North 28°.46' b6" West, 300.00 feet to'a U.S;*,•.•• •' Concrete Monument B-160-15; t, .'•, THENCE North 24° 43' 54" East, 465.00.feet to a.U.S.A. '• Concrete Monument 8-160-16; . THENCE North 88° 09! '43" East, 332.45 feet;to the east line ' of said 220.02 acre traet;'said east line being the west line-of ,•, ' the S. 3.•Hayes Survey, Abstract No. 648;' • THENCE in a southerly direction along said east line as : • •• ....follows: . .. :x ' 1.: South 01°•50' 17" East, 395.8b'feet;• 2. South 01° 36' 2141'East,' 311.30 'feet'to'a U.S.A.'Concrete :. Monument $-185-3; • .',- 3. •South 00° 46' 31" East'; 587;38 feet. tb' the Place.of•"..•-•:;•..;:. '.."i • Beginning and containing 12.250 acres-of land•..: -•:r• • ::-:_'•.•; '• '_',,q • .5,; FILM)FOR RECORD �r U.." DAY OF A.D. 1975. At r M.',t' , 'RECORDED t''j DAY� A. 1 ' • °' MARY J t1 LL. CLUMSY CLERK. 0 COUNTY,9TEXAS. v; : .',:•L�.s ��.•~ HY: l:xe, DEPOTY. �". .. 1p. •=w;r`,:,•-a: .'ice` .til,krA3�.« .�.r;•t��"'„0taa�a..s , Page 13 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM .Asi,'11 rn , I- 0 0 121 0 0 E 13 = , II ' 1 :i • z 1 I Ar ) ...._ 9 9-ism X tri ' 1111 Page 14 of 14 License Agreement City of The Colony, Texas—Webber 10/10/2014 9:21:16 AM